To impeach or not to impeach, that is the question Congress must face

Attorney General William Barr is scheduled to testify to Congress regarding special counsel Robert Mueller’s report on the Russia investigation. For a refresher on what’s at stake for President Trump, let’s examine the report with a sample Q&A:

Q. Does the Mueller report exonerate the president of criminal wrongdoing?

A. No.

Q. Does it conclude the president’s actions involved “no criminal conduct”?

A. No.

{mosads}Q. Why didn’t Mueller bring a criminal charge against President Trump?

A. Several reasons, anchored in fact and law. Mueller described the facts of obstruction as presenting “difficult issues” that could not be sufficiently resolved to allow “traditional prosecutorial judgment.” That is rather vague and begs fuller explanation by Mueller. What is not disputed is the longstanding view of the Office of Legal Counsel (OLC) that a sitting president is not subject to criminal indictment. This was the view of the office at the time of Watergate and Richard Nixon; at the time of the Starr inquiry into Bill Clinton; at the time of Iran Contra and Ronald Reagan.

Q. Doesn’t this put the president above the law?

A. Quite the contrary, the law would be subverted if it invited a criminally indicted president to continue in office. The president is obligated “to take care that the laws are faithfully executed” and an indicted president would lack credibility and ability to perform his constitutional function.

Q. Didn’t OLC reach this view to prevent sitting presidents from answering subpoenas?

A. No. Even the earliest attorneys general have held it is permissible to subpoena a sitting president; presidents as far back as Thomas Jefferson have uniformly complied with document requests and subpoenas for testimony. However, a unanimous Supreme Court held in Clinton v. Jones that no president has been judicially coerced to testify in open court, and none has.

Q. Is the OLC view open to challenge?

A. Every issue can be litigated, but the arguments for the OLC position are historically grounded, multiple in number, and consistent with the overall logic and structure of the Constitution.

Q. Why is President Trump challenging every subpoena for an unredacted copy of the Mueller report or for additional testimony from those discussed in the report?

A. Politically, Trump senses the public’s investigation exhaustion. Legally, Congress has the subpoena, but still must show the evidence sought is material and relevant to legislative oversight, and cannot be obtained elsewhere. Yet, according to the Supreme Court, even that is not enough if the president has not waived privilege and if indiscriminate distribution of materials would endanger open prosecutions, disclose sources and methods, undermine the security of the nation (including its electoral processes), or disclose or place in jeopardy witnesses and other innocent parties. That said, privilege disputes generally are resolved by practical accommodation and AG Barr has indicated that appropriate members of Congress may well receive access to an unredacted copy under controlled circumstances.

{mossecondads}Q. Why didn’t Mueller insist upon President Trump’s testimony, along the lines of Reagan’s videotaped evidence in Iran Contra?

A. Mueller determined, based on information from other sources, including the president’s written interrogatories, that pursuing in-person testimony would only lead to protracted litigation and not be in the best interests of accountability.

Q. Why did Mueller determine the president had not coordinated or conspired with the Russians, given the large number of Trump campaign contacts with Russian nationals?

A. Here, Mueller’s testimony before Congress would be helpful. Part of his thinking is guided by the principle that a president in office cannot be indicted, but there also seems to be some confusion about his appointment and scope of responsibility. In the report, the special counsel’s investigatory charge seems to have been misinterpreted as limited to determining whether or not Donald Trump or his campaign illegally conspired with the Russian government to create doubt and lack of finality with respect to the 2016 electoral outcome. Actually, it is not surprising that the team found no such conspiracy; after all, Trump’s objective was to win and the Russians’ was to destabilize.

Q. Does this mean the Mueller report asked the wrong question and was a waste of time?

A. No, but it does mean the evidence investigators unearthed is more practically relevant to the question of collusion than to unlawful conspiracy. Mueller interpreted his mandate to be a fact-finder. Thus, it is up to Congress to determine whether the president or his campaign had become accessories of the Russia’s unlawful thievery of Hillary Clinton’s emails and those of the Democratic National Committee. The June 2016 Trump Tower meeting and the heavy reliance by candidate Trump on the stolen materials in the final weeks of his campaign should be of direct relevance to the House and Senate Judiciary Committees.

Q. Why doesn’t the law, including the Constitution, speak directly to collusion?

A. Actually, it does. Collusion is not far different in purpose than the constitutional prohibition on receiving gifts or emoluments or other financial advantages from foreign nations. The Constitution was designed to minimize temptations of bribery and other forms of corruption, some against the law and some just profoundly unpatriotic and unethical. The Constitution places the impeachment question in the hands of political actors who would be accountable to “We the people.” The Framers did not want an unelected prosecutor, no matter how fair-minded, to make the ultimate political determination to impeach or not to impeach.

Q. Was the Barr summary consistent with the Mueller report?

A. Yes, in large part, though Mueller reportedly complained that the summary did not capture the investigation’s scope. Mueller is right that Barr’s four-page transmittal hardly captured 448 pages of detail and analysis. Mueller presented factual evidence, without prosecutorial conclusion or editorial comment. By contrast, Barr, claiming to apply the same prosecutorial method, determined the evidence insufficient to charge obstruction as a matter of law and fact.

Q. So, what now?

A. That’s up to Congress, and while it is understandable that Congress may want to assess the veracity of witnesses firsthand, it must be mindful that there is no reason to redo the Mueller report. The report is comprehensive and the day of political reckoning has arrived: Is the Trump campaign’s reliance upon Russia and its unlawfully obtained materials a basis for removal? Congress may wish to recall the commentary of Virginia ratifier Edmund Jennings Randolph:

“There is another provision against the danger … of the president receiving emoluments from foreign powers. If discovered, he may be impeached. If he be not impeachable, he may be displaced at the end of the four years… . I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.”

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel (OLC) under Presidents Ronald Reagan and George H.W. Bush. He is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law. Follow him on Twitter @dougkmiec.