Robert Mueller Is Not a Superhero

Robert Mueller, testifying before Congress in 2013. Credit Tom Williams/CQ Roll Call, via Getty Images

For many people, it’s up to Robert Mueller, the special counsel, to settle the question of “collusion” in the 2016 election. A clean, clear, nonpartisan legal finding would be the most acceptable possible outcome. If he uncovers a crime by the president, Congress would be justified in pursuing an impeachment inquiry.

So it should not matter that the House Intelligence Committee has abruptly ended its “investigation,” declining to compel testimony from key uncooperative witnesses or subpoena relevant records. In the words of one commentator, we need only “wait for Mueller.”

But this view is wrong, a confusion of constitutional roles and responsibilities. Mr. Mueller has one job, and Congress has another. The potential offense that each is investigating might go by the same shorthand — “collusion” — but it is not the same.

What counts as evidence, and how it is weighed and debated, is by necessity different in the two proceedings. Confusion over this point has major practical consequences for how long the nation must await a full and clear resolution of the question of Russian interference in the election, and any role Mr. Trump and his campaign played in it.

The problem seems to start with anxiety about impeachment as too “political” a process — especially in a hyperpartisan environment. That it is political in character is undeniable, but the founders thought of the politics of impeachment as being of the highest order, concerned with the protection of the constitutional system from serious executive misconduct. As James Madison told the Congress, a powerful presidency carried with it a high danger of abuse of office, and the remedy of impeachment was available “at all times.”

Legal and constitutional concerns require clarity about the nature and relevant evidence of misconduct. On the legal side, Mr. Mueller may be headed toward a theory of collusion, potentially implicating the president and others, in the form of a “conspiracy to defraud the United States.”
There are particular requirements for making such a case, as well as predictable defenses. Lawyers will disagree, for example, over the legal import of what the president, as candidate or president, has publicly said about Russia — his open appeal to the Russian government to locate and publish the emails of Hillary Clinton or his repeated references to the fact of Russian electoral intervention as a “hoax.”
Do these actions constitute affirmative acts in furtherance of a criminal conspiracy, subjecting Mr. Trump to “accomplice liability”? The courts would decide.

But these actions are undoubtedly relevant to any potential impeachment inquiry. What the president publicly stated and tweeted takes on greater significance in light of the revelation that his campaign representatives — as we learned in the memo from Democrats on the House Intelligence Committee — were told that Russians could disseminate emails stolen from Mrs. Clinton. In addressing collusion with Russia, Congress must decide whether this president should retain office if the facts establish that he entered into some form of political alliance with Russia and then came to office in debt to a foreign power while determined to obstruct a public accounting. Congress has the obligation to make this determination regardless of whether Mr. Trump may be guilty of aiding and abetting a criminal conspiracy.

That requires a constitutional judgment. Answering strictly legal questions in a potential trial does not resolve the issue of the president’s accountability under the Constitution. Congress’s inquiry can and should be informed by an unfettered special counsel investigation, but it cannot depend on it.

Furthermore, narrowing impeachable offenses to include only violations of law may lead to a constitutional dead end. In opinions issued in 1973 and 2000, the Department of Justice’s Office of Legal Counsel has taken the position that a sitting president cannot be indicted while in office. If Mr. Mueller concludes that the president engaged in criminal conduct but follows O.L.C. opinions in declining to indict him, the president’s legal responsibility will not be adjudicated as long as he occupies the White House. On what basis would Congress then proceed to oust him from office under the legalistic conception of the impeachment power?

Many people assume that the special counsel will report to Congress on the evidence against the president. But the special counsel regulations, unlike the now defunct independent counsel statute, do not clearly mandate or authorize any such report from either the counsel or the deputy attorney general. Congress may be more likely to learn about Mr. Mueller’s work from publicly filed indictments and plea agreements.

And Congress cannot rely on the Mueller record alone. Even if Congress made impeachment a legal rather than political process, a president will be quick to argue that he is entitled to a fair adjudication of any criminal charge.

Moreover, the timetables for the two processes are not the same. Congress cannot responsibly defer its task for as long as it may take for lawyers to clash and courts to rule.

A Congress that was serious about meeting its responsibility would neither shirk nor rush a judgment about a president’s impeachable offenses. The House would structure an investigative and deliberative process that it would explain in clear terms to the public. As in 1974 in the Nixon impeachment process, the House Judiciary Committee would review and publish the best constitutional learning on what presidential misconduct rises to the level of “high crimes and misdemeanors.” It would proceed in the same spirit as its predecessor did when the 1974 committee said that “what is said here does not reflect any prejudgment” of the allegations but is “intended to be a review of the precedents and available interpretive materials, seeking general principles to guide the committee.” The Committee would then move to the investigative phase.

As in the Watergate case, the congressional inquiry would run parallel to the legal process, each benefiting from the other even as Congress took steps as necessary to avoid compromising the criminal investigation. It’s not difficult to imagine a new Mueller indictment spurring the Congress to action. While the special counsel may conclude that he cannot indict the president, the nature of charges against close aides and relatives could support the initiation of an impeachment inquiry. Even in this case, Congress’s task is to carry on its own investigation and to arrive at an independent judgment about whether the president should remain in officeIn the end, some may hope that delegating Congress’s responsibility to the legal process will unite the public around the outcome. They will be disappointed. The independent counsel Kenneth Starr’s investigation of Bill Clinton rallied Democrats against impeachment as much as any other aspect of his defense. Mr. Mueller has already had strong tastes of these attacks.

When the Trump-Russia matters comes to a conclusion, we will learn how well “the system” addressed an extraordinary challenge. A crucial measure of its success or failure will be its adherence to constitutional process on a correct understanding of institutional responsibility. It is up to Congress — evidently not this one, maybe the next — to show that it can rise to the occasion.

By Bob Bauer/NYTimes

Posted by The NON-Conformist

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