Presidential Abuse of Power Should Be Focus of Mueller Questioning

In questioning Special Counsel Robert Mueller, the members of the House Judiciary and Intelligence Committees carry a broader responsibility than Mueller did in carrying out his investigation into Russian election interference. In examining the factual findings of his report, the House must consider whether as president, Donald Trump abused his power or violated his oath of office. The House should do so regardless of its plans or ultimate decision on whether to pursue impeachment. While the narrow questions of criminal law — concerning conspiracy, obstruction, etc. — were properly the organizing principles for the Special Counsel’s investigation, they should not be the main focus for the House’s inquiries. As constitutional law scholars Charles Black and Laurence Tribe have both observed about impeachment: The commission of crimes by the president is neither necessary nor sufficient; an observation that also applies in determining that the president engaged in misconduct.

The findings detailed in the Mueller Report raise the question whether, since being elected, Trump has acted consistently with his oath to defend the Constitution. Or, has he failed in his duty to defend the United States against Russia’s apparently still ongoing interference in our elections, and instead abused presidential powers to protect his own personal interests at the expense of the U.S. national interest?

To examine Trump’s abuse of power while in office, the committees do not need to broaden the scope of their inquiries into the Mueller Report, to include larger foreign policy questions, like Trump’s attacks against NATO and the European Union. Rather, they need to prioritize what Mueller can tell us about Trump’s potential abuse of power and violation of the president’s oath, instead of focusing on the narrower scope of criminal law or counterintelligence considerations.

Welcoming Russian interference on the campaign trail

In evaluating Trump’s actions since being elected, the committees will need to take into account what Trump and his campaign did with regard to Russian interference in the 2016 election. This way, they will have the proper context with which to judge Trump’s response as president to the investigation into that foreign interference in our democracy.

First, what did Russia do? As the Mueller Report states, “the Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” It did so by carrying out “a social media campaign designed to provoke and amplify political and social discord in the United States.” Russian intelligence also broke into the computers of Americans, stole thousands of private emails and released them through Wikileaks and others. In response, Mueller indicted more than two dozen high-level Russian officials for these criminal activities. And Mueller confirmed the earlier U.S. intelligence community’s finding that Russia sought not only to sow political division, but also to help elect candidate Trump and to harm the campaign of Hillary Clinton.

During the 2016 campaign, candidate Trump never condemned Russia’s interference. He did not condemn Russia’s theft and disclosure of Americans’ emails. To the contrary, Trump publicly welcomed Russia’s hacking and used the stolen emails in his campaign speeches. He praised Putin unreservedly.

When the press raised questions about his approval of Russia’s activities, Trump repeatedly lied to the American people claiming he had no business interests in Russia or contacts with Russians. But the Special Counsel’s report established that there were “numerous links between the Russian government and the Trump Campaign.” The Special Counsel also documented that, contrary to Trump saying he had no business dealings in Moscow, his company was pursuing a major real estate deal in Moscow as late as the summer of 2016, even communicating directly with Putin’s own spokesman about moving forward.

The Special Counsel summarized the transactions between Russia and the Trump campaign this way:

“the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and […] the Campaign expected it would benefit electorally from information stolen and released through Russian efforts . . . .”

What’s more, Trump compromised himself and left himself open to blackmail by Russia with his public lies about his lack of business dealings with the Russian government or communications between his campaign and Russian officials. Trump’s lies of course were known to Putin, and thus left Trump vulnerable to coercion and undue influence by him. Moreover, Trump’s craven response to Putin and Russia after the election raises serious questions that whatever the Russians have on Trump wouldn’t simply expose him as a liar but could expose him or his family to criminal charges.

Trump takes office

The Special Counsel’s investigation of Russian interference in the election and the Trump’s campaign enthusiasm about it appropriately focused on possible crimes committed. But additional serious challenges to our democratic institutions arose after Trump’s unexpected election as president.

When Trump was elected, he had clear choices about how to proceed with Russia’s election interference and the U.S. government response. At that point, he knew about the Russian attack and he knew that the FBI and the U.S. Intelligence Community were investigating the attack. He knew that he had lied during the campaign about his contacts and business links with Russia. While he had publicly welcomed assistance from Russia and praised Putin, he claimed that he had not engaged in any “collusion.” Now as president, he would assume extraordinary power over government institutions, as well as new responsibilities to defend the Constitution and take care the laws be faithfully executed.

The obvious choice consistent with those obligations would have been for Trump to condemn Russia’s criminal interference in the election; act to deter such interference in the future; welcome a law enforcement investigation to determine whether any Americans had been involved; and come clean with the public about his Russian contacts. Doing so would have helped defend the United States against future Russian interference. It would have sent a clear message to Putin that he would not be able to leverage his assistance to Trump’s election campaign or his knowledge of Trump’s lies to obtain favorable treatment from the U.S. president. Trump could have done all this, even while seeking a “reset” of the broader foreign policy relations between the U.S. and Russia, if he determined such a course of action to be in the best interests of the United States.

Of course, Trump did none of this. He didn’t condemn the Russian attack or impose costs on Putin and Russia for their criminal interference. To the contrary, Trump’s actions could only have encouraged Putin.

Knowing that Russia had helped his campaign, knowing that he had lied about welcoming that assistance and that Russia could expose those lies, and clearly worried about what an investigation might uncover, Trump embarked on a full-scale campaign to discredit the investigation and the investigators and even the U.S. intelligence community. As detailed in Mueller’s Report, Trump repeatedly tried to obstruct the government’s investigation into Russia’s attack. He continued to lie to the American people about Russia’s activities, as well as his company’s and his campaign’s, and encouraged his associates to dissemble to investigators. Rather than denouncing Putin’s assault on U.S. national sovereignty and the international rule of law, he continued to praise him in extraordinary, unprecedented terms, while undermining U.S. institutions, like the FBI, the CIA and the Justice Department.

The House committees must examine whether in doing all of this Trump corruptly abused the powers of the presidency to further his own personal interests to the detriment of the national interest he is sworn to protect, and to the advantage of a U.S. adversary.

To begin with, the committee could focus on those actions detailed by Mueller where the president wielded presidential powers and examine whether he did so properly or corruptly. The Mueller Report details 10 instances of conduct by the president, where the Special Counsel considered whether there was sufficient evidence of obstruction of justice to warrant criminal charges. (While the Special Counsel concluded that he could not exonerate the president of such criminal conduct, he determined that he had no authority under existing Justice Department rules to indict the president.) The committees’ job now is to examine whether those facts relevant to obstruction of justice also establish abuses of power.

One such example concerns the actions by Michael Flynn, Trump’s first national security adviser. Although Trump knew that Russia had acted illegally to help him get elected, instead of warning Russia that it could not expect any reward for its support,  the Trump administration sent a message of encouragement to Russia even before the inauguration. As outlined in the Mueller Report, Flynn secretly told Russia’s ambassador to the U.S. not to worry about the sanctions being imposed on it for its election interference by the Obama administration, and not to retaliate against them. Afterwards, Putin announced that Russia would not respond to the sanctions and Trump tweeted his approval of Putin’s decision. Flynn then lied to the FBI and others, claiming he had not discussed sanctions with the ambassador. After Trump was forced to fire him when those lies were publicly exposed, Trump sought to have K.T. McFarland, the deputy national security adviser, write an after-the-fact memo stating that Trump had not asked Flynn to raise the issue of sanctions, even though the deputy says she had no knowledge whether that was true. At the same time, Trump and his administration continued to publicly deny campaign contacts with Russia or that Russia had interfered in the election to his benefit.

After Trump learned that the FBI was continuing to investigate Flynn, he repeatedly intervened in the investigation, asking then-FBI Director James Comey to drop the investigation. According to the Mueller Report, Trump sent messages of support to Flynn even after he pleaded guilty. Trump’s actions are not consistent with the obligation of the president to take care the laws are faithfully executed. Rather, together, they paint a picture of a president using the powers of his office to shield himself by putting words in the mouths of his White House subordinates, even as they are being interviewed by federal and congressional investigators, and by dangling the possibility of a pardon, presumably to encourage Flynn to keep silent about any harmful information he had about Trump, including the president’s knowledge of Flynn’s conversations with the Russian ambassador about sanctions.

Mueller’s report outlines more instances of presidential abuse of power, including his efforts to remove the Special Counsel, to curtail the investigation and to pressure Attorney General Jeff Sessions to pull back his recusal from overseeing the investigation. Whether any of this constitutes criminal obstruction of justice Mueller leaves unsaid, but all of these actions appear to be corrupt uses of Trump’s powers as president to interfere with and shut down any investigation of himself and his family. Trump’s unprecedented public attacks on the integrity and actions of the intelligence and law enforcement agencies and individual officers carrying out the investigation raise similar concerns.

Finally, note that whether Trump, in fact, entered into some kind of agreement with Putin or the Russian government in return for the election assistance or some other benefit is irrelevant to this line of inquiry. Mueller looked for such an explicit quid pro quo in the narrow context of considering application of conspiracy laws and, in the end, did not find sufficient evidence to bring charges. But there is abundant reason to be concerned that Trump let himself be compromised by Russia’s help. If he hadn’t become president, it would have mattered much less. But when he became president, Trump’s failure to free himself of Putin’s leverage, and instead to dig himself deeper, violated his core presidential obligations and threatens U.S. security.

Congress has no greater responsibility than to examine whether Trump violated his oath of office and abused presidential powers for his own corrupt purposes. The conduct laid out in the Mueller report is only one such case. Moreover, the most important and effective deterrent against future attacks like Russia’s in 2016, is to hold accountable those who are responsible, not just those in Russia, but also the U.S. president, who failed in his duty to protect against such attacks because he wanted to avoid accountability for himself and his family.

Photo by Win McNamee/Getty Images

 

About the Author(s)

Kate Martin

Senior Fellow at the Center for American Progress