Impeach already!

My weary 2-year old son after an Impeach Nixon march and rally in Washington, DC in 1974.

Impeach the corrupt, lying, criminal in the White House already! What the hell are you waiting for, Congress?

Oh, right, you’re all waiting for the unredacted Mueller report so you have “all the facts” before proceeding. A noble sentiment. Hollow words. There is ample evidence in the redacted version of the Mueller report. If not for a Nixon-era Department of Justice memo — a memo for crying out loud — that opined a sitting president cannot be indicted, Mueller himself would have likely pressed a charge of obstruction of justice. Instead, we have a Congress obstructing justice.

Benjamin Wittes of the Lawfare Blog lays it all out very neatly in an important new article at the Atlantic.

The president committed crimes.

There is no way around it. Attorney General William Barr’s efforts to clear President Donald Trump, both in his original letter and in his press conference the morning of the report’s release, are wholly unconvincing when you actually spend time with the document itself.

Mueller does not accuse the president of crimes. He doesn’t have to. But the facts he recounts describe criminal behavior. They describe criminal behavior even if we allow the president’s—and the attorney general’s—argument that facially valid exercises of presidential authority cannot be obstructions of justice. They do this because they describe obstructive activity that does not involve facially valid exercises of presidential power at all.

Consider only two examples. The first is the particularly ugly section concerning Trump’s efforts to get then–Attorney General Jeff Sessions to “unrecuse.”

The alleged facts are simple enough. According to Mueller, the president asked Corey Lewandowski to convey a message to Sessions. It was a request that Sessions reassert control over the special counsel’s investigation, make a speech in which he would declare that the president didn’t do anything wrong and that the special counsel’s investigation of him was “very unfair,” and restrict the special counsel’s investigation to interference in future elections. Lewandowski asked a White House staffer to deliver the message in his place; the staffer in question never did so.

A few factors are important to highlight here, all of them aggravating. Lewandowski was not a government employee, so this was not an example of the president exercising his powers to manage the executive branch. Indeed, Trump very specifically did not go through the hierarchy of the executive branch. He tried to get a private citizen to lobby the attorney general on his behalf for substantive outcomes to an investigation in which he had the deepest of personal interests. What’s more, the step he asked Lewandowski to press Sessions to take was frankly unethical. Sessions recused himself from the Russia probe because he had an actual conflict of interest in the matter. In other words, the president of the United States recruited a private citizen to procure from the attorney general of the United States behavior the attorney general was ethically barred from undertaking.

But it gets worse, because Trump did not merely seek to get Sessions to involve himself in a matter from which he was recused. Trump wanted Sessions both to limit the scope of the investigation and to declare its outcome on the merits with respect to Trump himself. This action would have quite literally and directly obstructed justice.

Another example: Mueller reports that after the news broke that Trump had sought to get then–White House Counsel Don McGahn to fire the special counsel, Trump sought to get McGahn to deny the story. He also sought to get him to create an internal record denying the story. McGahn refused.

The attempt to get McGahn to write an internal memo disputing the story is the crucial fact here. The president’s conduct might otherwise be defended as a mere effort to lie to the press, but one doesn’t order the creation of false internal documents for purposes of denying a published story.

If one accepts, as I do, Mueller’s general reading of the obstruction statutes as applied to official presidential action, there are many more examples. When Trump leaves office, assuming statutes of limitations have not yet run out, someone will have to make the binary assessment, which Mueller did not make, of whether they amount to prosecutable cases. As a historical matter, the report leaves me with little doubt that the president engaged in criminal obstruction of justice on a number of occasions.

Evidence of criminal obstruction of justice is right there in the redacted report, multiple times. Congressional Democrats who claim to be waiting for more information, for more hearings, are not really waiting for anything. They’re ducking their Constitutional duties because they sense the possibility of political peril.

Another reason we’re given for the Democrats’ delay is the claim that even if the House impeached Trump, there is no way that the Republican-controlled Senate would ever vote to convict him.

First, note that this reasoning flies in the face of the claim that the Democrats are waiting for the unredacted report and further information. Getting the unredacted report and gathering more information will not change the equation — the Republicans still couldn’t be counted on to convict.

What this excuse overlooks — intentionally — is that although right now it is probably true that the Senate would not vote to convict, the political equation will be substantively changed by the time we have full impeachment hearings in the House, with piles of evidence laid out for every American to see and review. The political equation will again be substantively changed after the Senate holds a full-blown trial and the mountains of evidence are once again laid out for all to see.

I think there would be more than enough Republicans who would find it difficult to explain a not guilty vote to their constituents in the wake of all the public evidence of malfeasance. Impeachment hearings are intended to bring wrongdoing to light, to demonstrate it to the public and thereby change the political equation.

We’re hearing that the public does not support impeachment. The same logic that applies to the Senate applies to the voting public. Lay out the evidence first, through impeachment hearings, and then take another damn poll! The public is constantly changing its collective opinion about all kinds of matters. de la Vega is a former federal prosecutor. I had the pleasure, years ago, of interviewing her on Other Voices TV.)

And finally, we are told that elections are coming up in just 18 months, we should just let the voters decide. That’s certainly not what the Framers of the Constitution had in mind. Elections were never intended as a remedy for treason, high crimes and misdemeanors. The authors included the impeachment mechanism for a specific reason. And that reason is staring us in the face.

Impeach already!

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