Mueller Hearing Risks Narrowing the Range of Impeachable Offenses

Let’s assume that former special counsel Robert Mueller’s testimony remains strictly within the boundaries of his public report, as he suggested it would and as the Justice Department said it must. Within the four corners of Mueller’s public report is far more evidence of impeachable offences than the 10 potential cases of criminal obstruction the report outlines. That’s because “high crimes and misdemeanors” is a category of misconduct that includes abuses of power by a President that are not limited to whether such actions meet the elements of a federal crime. The report is replete with incidents that cross the line. We detail below some of the most significant allegations. Our analysis is important even if the House never goes down the road of impeaching President Trump. Regardless of what Speaker Pelosi ultimately decides, it is important that the public understand and that the historical record is clear on the abuses President Trump has committed.

The House hearings with Mueller as the witness will likely obscure this understanding. Mueller’s specific remit was a criminal investigation, and members of Congress (especially on the House Judiciary Committee) will likely focus, understandably, on Trump’s potentially criminal activity. That exercise, however, takes attention away from other facts documented in the Mueller report that demonstrate a profound threat to our system of governance and clearly amount to impeachable conduct.

I. What’s the Standard?

It is well settled that impeachable offences include egregious abuses of power incompatible with the responsibilities of the Office of the President. “High crimes and misdemeanors” is a broad category that includes but is not limited to the most serious violations of criminal law. Nor does it even require violation of a federal statute. High crimes and misdemeanors can include a President’s violations of federal statute or failure to enforce federal statutes, especially if those actions include a gross dereliction of the President’s constitutional duty to “take care that the laws be faithfully executed.” History and good sense make clear that flagrant abuses of power and violations of the public trust are impeachable offenses.

A 1974 House Judiciary Committee report provides useful guidance on how Congress should consider presidential abuses of power when weighing impeachment. Such abuses encompass “conduct seriously incompatible with … the proper performance of constitutional duties of the presidential office.” The test for determining whether an abuse of power rises to the level of a high crime or misdemeanor requires that the facts “be considered as a whole in the context of the office, not in terms of separate or isolated events.” The question, in other words, is one of the President’s fundamental fitness for office and viability as the chief defender of the nation and its constitution. The inquiry is also a holistric one, taking into account the collection of related events and patterns of behavior.

The House of Representatives’ first impeachment of a president reflected the understanding that abuses of power may be impeachable without being criminal simply because such actions disqualify the President to lead the nation. Congress’ concern over Andrew Johnson’s fitness for office stemmed from his erratic, demagogic and deeply biggoted public opposition to Reconstruction––behavior that was summarized in his Articles of Impeachment as “utterances, declarations, threats and harangues, highly censurable in any, … peculiarly indecent and unbecoming in the Chief Magistrate of the United States.” The House’s charge that Johnson had “brought the high office of the President of the United States into contempt, ridicule and disgrace, to the great scandal of all good citizens,” was itself sufficient to establish the President’s commission “of a high misdemeanor in office.” The House also voted for impeachment based on the allegation that Johnson had dismissed the Secretary of War in violation of a (non-criminal) federal statute. The Senate famously failed to convict Johnson by a single vote. The test for impeachment, however, was clearly understood to be entirely distinct from a prosecutorial determination that the President engaged in criminal misconduct.

Similarly, the second Article of Impeachment against President Nixon listed several acts of egregious (non-criminal) wrongdoing that involved “using the powers of the office of President of the United States … in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed.” These included Nixon’s abuse of the FBI, the CIA and the IRS to harass his “enemies.”

Finally, it should be noted that impeachable offenses are not limited to actions taken while serving in government, but also include actions a President might take to win election through illicit or illegitimate means. In discussing the need for including the impeachment clauses in the Constitution, George Mason famously said, “Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”

II. What’s in the Mueller Report

The lines of inquiry that Congress can pursue along the track of an impeachment inquiry include but are not limited to the specific lines of criminal investigation pursued by the Special Counsel. 

Volume 1: Trump-Russia

With respect to Volume 1 of the report, the Special Counsel investigation focused specifically on whether Americans joined the Russian government’s two criminal conspiracies to interfere in the election (the conspiracy involving the hacking and release of stolen emails and the conspiracy involving the social media campaign).

In contrast, for impeachment purposes, Congress is not tied to questions of criminal law. The House could, for example, consider candidate Trump’s systematic public denials of contacts with Russia despite a secret, highly lucrative real estate deal with the Kremlin; the failure to warn federal authorities of the Russians’ secret efforts to support Trump and defeat his political opponents; and undisclosed connections with Russians that may have given the Kremlin leverage over the President and his associates once they assumed office. 

This line of analysis is important when considering––for impeachment purposes––whether Trump acquired office through illicit or illegitimate means. Working in tandem with a foreign adversary (Russia) and a “non-state hostile intelligence service” (as then-CIA Director Mike Pompeo described WikiLeaks) to help win election to the White House could amount to impeachable conduct. That’s true regardless of whether the underlying activity is currently prohibited by federal conspiracy or election law.

Working in tandem with a foreign adversary (Russia) and a “non-state hostile intelligence service” to help win election to the White House could amount to impeachable conduct. That’s true regardless of whether the underlying activity is currently prohibited by federal conspiracy or election law.

This line of analysis is also relevant to consideration of President Trump’s connections to Russia during his time in office. The authors of the Constitution were, in particular, concerned with foreign influence on a President. James Madison explained  that the power of impeachment was an important safeguard because it was “indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate. … He might betray his trust to foreign powers.”

Volume 2: Abuses of Power in Office

With respect to Volume 2 of the report, the Office of Special Counsel focused specifically on whether the President committed the crime of obstruction. But Congress, in considering impeachment, need not be so narrow in its criteria for assessing serious misconduct. The question is simply not limited to whether President Trump’s mental state, actions, and the effects of his behavior satisfied the discrete elements of the federal crime of obstruction. As the 1974 House Judiciary Committee report explained, the standard is whether Trump’s “conduct [was] seriously incompatible with … the proper performance of constitutional duties of the presidential office.”

Some of the most serious instances of abuses of power documented in the Mueller report include: 

1. The President’s holding onto the Attorney General’s resignation letter as leverage (“Priebus told Sessions it was not good for the President to have the letter because it would function as a kind of ‘shock collar’ that the President could use any time he wanted; Priebus said the President had ‘DOJ by the throat.’”);

2. The President’s ordering White House Counsel Don McGahn to enter a false record denying the President told McGahn to fire the Special Counsel (whether or not that action would deceive the press and the public or interfere more specifically with official proceedings in which McGahn was a witness);

3. The President’s meeting one-on-one with private citizen Corey Lewandowski and dictating a message for Lewandowski “to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia investigation to future election interference only” (in carrying out this task, Lewandowski then contacted Sessions but “did not want to meet at the Department of Justice because he did not want a public log of his visit”);

4. The President’s issuing several orders that White House officials refused to carry out because the instructions were either illegal or otherwise seriously incompatible with the exercise of official duties and oversight of the Justice Department;

5. The President’s asking Attorney General Sessions in a private meeting to “‘take [a] look’ at investigating [Hillary] Clinton,” the President’s former political opponent (also in violation of the Attorney General’s required recusal); and 

6. The President’s intimidation of witnesses who had, in his words, “flip[ped]” or “rat” on him and his dangling of pardons, including through his personal attorneys Rudy Giuliani and John Dowd.

This list is illustrative rather than comprehensive and is confined to the subject matter of the report.

Congress will undoubtedly try on Wednesday to focus public attention on criminal abuses of power, but should not lose sight of the fact that an argument over whether the President can be indicted may in the end distract from the full gravity of President Trump’s offenses, criminal or not. The special counsel’s report does, in this sense, speak for itself. But you have to listen in the right way to what it has to say.

Photo by Win McNamee/Getty Images

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

John T. Nelson

Legal Fellow at Just Security, J.D. candidate at Yale Law School, former Research Associate at the Council on Foreign Relations, former Aide to Henry Kissinger, former Fulbright Scholar in Russia