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 emergency. David 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 of government.
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.
Originally published on The Resurgent