Last week, President Donald Trump fueled speculation that he might work to oust Robert Mueller, the former FBI director appointed to probe Russian interference in the 2016 presidential election. Trump could do so today, or tomorrow, or three months from now; the news could be announced in a televised speech, through a spokesperson, or even in a late night tweet sent on an impulse after his advisers have gone to bed.
If Trump fires Robert Mueller, few will be surprised. But if that happens, as the Department of Justice is thrown into chaos, as the American public sees its clearly expressed support for the special counsel disregarded, as the vital inquiry into the integrity of American elections stalls, as protesters take to the streets in a show of outrage at the affront to the rule of law, as the 2018 midterms morph into a referendum on the administration, and as American democracy reels into unknown territory, the House of Representatives should immediately impeach the president.
The Senate should vote unanimously to convict him.
And Vice President Mike Pence should be sworn into office as the 46th president, sparing the nation another day under a leader who’ll have proved himself to be unfit.
“Now wait a minute!” some of you are thinking. “The Constitution sets forth the standard for impeachment.” And so it does: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
If Trump is legally able to terminate a special counsel, or to instruct a subordinate to do so (the decision belongs to Rod Rosenstein, the deputy attorney general), how could that action, right or wrong, constitute a high crime or misdemeanor?
The answer requires an exploration of what “high crimes and Misdemeanors” even means; of the investigation that Robert Mueller is heading up; of why firing the special counsel might be a red line for Congress; and of why this should be the final straw even for ardent Trump supporters.
I don’t say that lightly. To impeach a president is undesirable. But to keep him would be too risky. To trust him would be too reckless. Prudence would require his removal.
High Crimes and Misdemeanors
There are phrases in the Constitution, like the one calling on Congress to make all Laws which shall be “necessary and proper” for “carrying into execution” its enumerated powers, or the prohibition against “cruel and unusual punishment,” that demand a degree of judgment and interpretation from all who endeavor to respect them.
High crimes and misdemeanors is one of those phrases.
As the Heritage Foundation notes, “Because ‘high Crimes and Misdemeanors’ was a term of art used in English impeachments, a plausible reading supported by many scholars is that the grounds for impeachment can be not only the defined crimes of treason and bribery, but also other criminal or even noncriminal behavior amounting to a serious dereliction of duty.” Andrew McCarthy, a former federal prosecutor who voted for Trump and wrote a book about the case for impeaching President Obama, explained matters further in a recent National Review column:
Nothing caused the Framers greater anxiety than the new office they were creating … They were rightly convinced of the need in a dangerous world for an energetic executive able to act swiftly and decisively in times of crisis. But, being close students of human nature, they were equally worried that the enormous powers attendant to the office could be abused, that they could fall into the hands of an unfit incumbent, or that they could come under the influence of foreign powers. They thus gave Congress a dispositive check: the power of impeachment and removal.
Impeachment, not criminal prosecution, is our Constitution’s response to egregious executive malfeasance. Thus, the critical part: The standard for impeachment, the commission of “high crimes and misdemeanors,” is not concerned with criminal offenses found in the penal statute books and suitable for courtroom prosecution. It relates instead to the president’s high fiduciary duty to the American people and allegiance to our system of government.
He goes on to quote Federalist No. 65, which notes that impeachable offenses “are those Which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” With all that in mind, the question before the House in determining whether Donald Trump’s behavior warrants impeachment is whether he is guilty of serious dereliction of duty, public misconduct, abusing our trust, or injury to American society; or whether he is meeting his high fiduciary duty to the people and to the American system of government. Firing Robert Mueller would cross all those thresholds.
Trump is on the precipice of failing all those tests.
The Stakes of the Russia Investigation
The stakes of the Russia investigation are bigger than any president.
For months, I have noted that “there is no evidence that Donald Trump or his campaign coordinated with Russia to hack the Democratic National Committee’s emails or funnel them to Wikileaks; no evidence that they are puppets of Vladimir Putin; and no proof that the Kremlin possesses kompromat on the president.” For months, I believed that an exhaustive investigation into his campaign would likely reveal no proof of collusion. And I still hope we get definitive proof that there was no wrongdoing.
But it was always clear that investigating Russian interference in the 2016 election was imperative, regardless of whether Trump or anyone with ties to him played a role. Elections are the cornerstone of representative democracy, the bedrock of our civic life. If there is even a chance a foreign government successfully interfered in one of our elections, the public is owed a thorough, credible probe, so that reality is known; so that we can better guard the electoral process going forward; and so that future voters can be reassured that their votes matter and future election results have integrity.
This isn’t a partisan matter. Had Hillary Clinton won the 2016 election, a Russia probe would still have been as vital. And most Americans understand that this isn’t partisan. Polls show that staggering majorities support a thorough fact-finding mission, at least outside the Beltway, where patriotism still trumps partisan loyalty in most places.
Former FBI Director James Comey once led the investigation to determine if and to what degree Russia interfered in American politics.
Then Donald Trump fired him, as was the president’s right.
All would have been fine if Trump’s rationale had been something other than thwarting the legitimate, ongoing Russia inquiry that is vital to American democracy.
But instead, Trump admitted something astonishing: While meeting with a group of Russians in the Oval Office, Trump told them, “I just fired the head of the F.B.I. He was crazy, a real nut job … I faced great pressure because of Russia. That’s taken off.” Trump could hardly have sowed more doubts if he was trying to destroy the public’s confidence that they would get the truth about Russian interference in the election. The public couldn’t help but wonder if he fired Comey because he had something to hide.
(He’d hardly be the first politician to behave that way. And if Hillary Clinton comported herself the same way, most every conservative would be rightfully suspicious.)
Suddenly, the Department of Justice was in a terrible position. Its investigation was far from complete. But Comey’s termination would cast doubt on its credibility going forward. To keep the public’s faith, they had to find someone who a deeply polarized public with little faith in D.C. insiders would regard as having integrity and independence. They settled on an elder statesman, Robert Mueller, a decorated Vietnam veteran who’d been appointed to lead the FBI by a Republican, George W. Bush.
Lo and behold, the American public trusted that choice. In fact, they trusted Mueller much more than they trust the president on this subject. The gulf is eye-opening.
Surveyed on the Russia probe, a solid majority of Americans said they believe that Robert Mueller will conduct an impartial investigation. Sixty-four percent said “Donald Trump is more concerned about protecting his administration from being investigated” than “protecting the U.S. from Russian interference.” Most important of all, when asked, “Do you think Donald Trump should try to stop the Special Counsel’s investigation if he wants to, or shouldn’t he?” 81 percent of Americans said he should not stop it.
The will of the people does not get clearer than that.
And that poll was conducted before revelations that Donald Trump Jr., Jared Kushner, and Paul Manafort––the president’s son, son-in-law, and then-campaign manager––attended a meeting in Trump Tower with Kremlin-connected Russians after being explicitly told they would receive dirt on Hillary Clinton from the Russian government.
To fire Robert Mueller now would not only transgress against the clear will of the public and undermine both the substance of the Russia investigation and confidence in its results––it would cause that damage to the investigation just as Trump’s family members and close associates are coming under scrutiny due to their Russia ties, and even as investigators weigh whether Trump’s finances are relevant, raising the specter that the public may soon find out what he’s hiding in his tax returns.
(Why is Trump so dead set against releasing them? Even his supporters don’t believe his bluff that the reason the public hasn’t seen them is because he’s under audit.)
Put another way, Trump will have put his family’s interests, and perhaps his own, above the interests of the United States and its people on a matter that could hardly be more serious: whether or not our elections are resilient against foreign adversaries.
When it comes to the presidency, the most powerful office in our system of government, the most extreme caution is warranted. If there is even a hint of suspicion that a president or his associates may be colluding with an adversarial power; or conducting hidden business relations with them; or subject to some sort of unknown leverage that causes them to compromise America’s interests even on the margins, it is only common sense for other Americans to err on the side of caution.
With the Trump team, there isn’t a mere suspicion of wrongdoing. There is all manner of behavior from multiple people that practically screams, “We’re hiding something!”
Terminating two FBI investigators in succession—if he fires Mueller—would be beyond suspicious. Who would vest a president like that with 100 percent of their trust?
If Trump fires Mueller, impeachment will obviously be raised by at least some members of Congress. The only uncertainty is how the majority of representatives will respond.
The answers to the questions they should ask would be clear.
Would thwarting the clear will of public, throwing the Department of Justice in crisis, and repeatedly undermining a hugely important investigation, gravely injure our society?
Would firing Mueller as he began to probe the Trump family’s financial ties to Russia, concurrent with the revelation that at least one family member attempted to collude with that very foreign power at least once, constitute public misconduct?
Would the totality of Trump’s actions amount to a dereliction of duty?
Is Pence the safer choice, the steadier hand, less erratic in his actions, less suspicious in his dealings with Russia, more transparent with his personal finances, and less conflicted by lucrative business deals with foreign powers?
He is all those things.
Is Pence less likely to betray the American public?
I think so. Do you?
If Trump fires Robert Mueller, it will be up to the House to impeach him. Why risk a compromised presidency? Declare bankruptcy and start over as Trump would: Make America great again.
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