Justin Amash has generated quite a stir with his comments
about President Trump having committed impeachable offenses. Most Republicans
and many conservatives are distancing themselves from his tweets, but I believe
that Amash hit the nail on the head.
If you’ve read the Mueller report, or even if you read about
only the most reported-upon sections of it, you know that Mueller’s team did
not find “nothing.” While Mueller did not find a criminal conspiracy with the Russians,
he did find numerous undisclosed contacts between the Russians and the Trump
campaign as well as a pattern of deception about those contacts. Even more alarming,
Mueller found that the president did attempt to obstruct
justice. Mueller’s pointed note that Trump could not be exonerated should
be translated to read that the president obstructed justice but could not be
prosecuted under DOJ policy.
From all this, what the president and his supporters have
gleaned is “no collusion, no obstruction.” In reality, the findings against
Trump are much more serious. Despite “no collusion,” the president showed
himself to be dishonest with the American people about his dealings with a foreign
power in his attempt to cover up negotiations for a Moscow Trump Tower that
were ongoing during the campaign. The president has demonstrated a habit of
attempting to cover up anything potentially embarrassing such as the meeting
with Natalia Veselnitskaya in the New York Trump Tower as well as defying
legal requests from Congress for his tax information. While the lies weren’t
illegal because the president did not lie under oath (as some of his staffers
did), it underscores the fact that Donald Trump is fundamentally dishonest and
cannot be trusted by the American people.
What was illegal were the president’s attempts to undermine
the Russia investigation. Some, such as Ben Shapiro, say that the law requires
either successful obstruction or an underlying crime to be criminal. There are
many others on the right, including Judge
Andrew Napolitano and former prosecutor Renato
Mariotti, who disagree. In fact, hundreds
of federal prosecutors say that Trump would have been indicted if he had
not been president.
In his tweet thread, Amash, who is himself an attorney
points out that there were underlying crimes uncovered by the Mueller
investigation but that obstruction of justice does not require the investigation
to have found a crime.
As Amash points out, the president could not have known for
certain what Mueller’s team would find. It was entirely possible that some
members of the campaign could have been Russian agents without Trump’s
knowledge. It is also possible – because it actually happened – that Mueller’s
investigation would uncover other crimes.
Add to Mueller’s findings the president’s attempt to
undermine the will of the voters and Congress by declaring a national
French explained in February why Trump’s national emergency violated existing
law, calling it “contemptuous of the rule of law.” This is a far cry from the
party that attacked President Obama’s circumvention of Congress on DACA and that
spent years pointing out that the House, not the president, held the purse strings
We are left with no criminal conspiracy and no prosecutable
obstruction because the DOJ has a policy against indicting a sitting president.
That’s quite a difference from “no collusion, no obstruction.” Unconstitutional
abuses of power add to the mix. There obviously was wrongdoing by the president
that deserves some sort of penalty. The options on the table are for the DOJ to
amend its policy, to indict Trump after he leaves office, impeachment, or a
congressional vote of censure.
Amash is also correct that the Constitution’s “high crimes
and misdemeanors” do not require the commission of a crime. The Constitutional
Rights Foundation points out that the original meaning of the phrase, as
the framers would have understood it, included both criminal acts as well as
noncriminal offenses with the “common denominator… that the official had
somehow abused the power of his office and was unfit to serve.”
In Federalist No. 65, Alexander Hamilton wrote that impeachable
offenses are “those offences [sic] 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.”
Donald Trump’s actions fall under the categories of abuse of
power, even if one does not acknowledge that they were criminal on their face. In
the best case scenario, the president directed his subordinates to undermine a
federal investigation. This is a clear breach of the public trust.
The most palatable option for Republicans should be a
censure vote. It would acknowledge that the president acted improperly and hopefully
restrain him in the future. Unfortunately, loyalty to Trump is now a litmus
test in the GOP. Republican congressmen cannot vote for censure without incurring
the wrath of both the party’s base and the president.
With most Republicans unwilling to follow Amash’s lead, most
GOP officials are stuck with the additional option of whistling the tune “no
collusion, no obstruction” as they tiptoe past the graveyard and pretend
nothing is wrong. The problem with following this option is that the media and
Democrats are holding up Trump’s misbehavior for voters everywhere to see. I’ll
wager that presidential ads next year will quote the Mueller report verbatim. Polls
show that Mueller
is more trusted than Trump even after two years of vicious Republican
attacks and that Mueller’s findings changed
few minds about Trump.
If Republicans choose to ignore Donald Trump’s misdeeds out
of either misguided loyalty to the president or an affinity for his policy,
then it will be up to voters to hold both the president and the Republican
Party accountable. Ideally, Republican voters would oust Trump in the primary,
but if not, it appears that general election voters will be up to the job.