The end of the investigation led by Special Counsel Robert Mueller, and the release of the redacted version of his report, mean that President Trump is far from “totally exonerated” and that the action moves to Congress.
But the conclusion of the inquiry leaves a series of difficult choices for both House Democrats and Senate Republicans, including whether to impeach and remove the president.
For starters, Mueller seems to have moved rapidly to end his part of the investigation without really exhausting the topic. There is, for example, quite a bit of redaction in the report based on “Harm to Ongoing Matter” – that is, continuing prosecutions. Most of that seems to be centered on the Russia material. These redactions, and those prosecutions, give the report the flavor of an interim document. In addition, there’s the discussion about the Mueller team’s decision not to force the issue when it came to interviewing President Donald Trump. Mueller considered Trump’s written answers “inadequate,” and believed he could successfully compel an interview. He ended up with the conclusion that taking the time to do so wasn’t worth the delay. It’s not clear why Mueller was in a hurry – but it's quite possible he believed it was important to get out as much material as possible well before the run-up to the 2020 general election campaign season.
Either way, there’s plenty remaining for Congress to do. On the Russia side of the story, the facts seem to fall well short of some of the worst fears about an active, deliberate conspiracy between Team Trump and Team Putin. But that’s not to say no one did anything wrong. Mueller, after all, did not say “no collusion.” The previous, Republican-majority Congress held hearings on some of these issues, but there’s a real need now for a series of well-orchestrated inquiries to produce a clear record of all the contacts between the Trump campaign and Russia that Mueller documents. And while they’re at it, they should clearly illustrate Russia’s campaign to influence the U.S. elections, a now established fact the president still shies away from accepting publicly.
It’s on obstruction of justice, however, that Democrats have the biggest challenges. Mueller did not bring charges against Trump – but he fills in even more devastating details about the president’s contempt for the rule of law, shown by a series of actions designed to impede legitimate investigations. That may or may not constitute criminal obstruction of justice, but the behavior clearly is obstruction of justice under the Constitution when it’s done by the president. What Mueller says Trump did is at least comparable to what was alleged in the Obstruction of Justice article of impeachment that the House Judiciary Committee approved against President Richard Nixon in 1974, and that the full House and the Senate were certain to approve before Nixon resigned. It’s far more serious than the obstruction allegations against President Bill Clinton in 1998, which the House approved.(1)
That includes, by the way, certain types of false statements to the public from the president – something that was included in the charges against Nixon in 1974.
The problem for House Democrats is that unless there’s a sudden shift in public opinion, and perhaps even if there is, it seems very unlikely that impeachment over obstruction of justice based on the Mueller evidence would produce conviction, and therefore removal of the president, in the Senate.
In other words, there’s not only grounds for a legitimate impeachment on obstruction of justice, but we’re very close to the point where the evidence is so compelling that ignoring it would be irresponsible. So while it’s still premature and it would probably be bad politics for House Democrats to move to impeachment now (and impeachment is always political), it’s also premature and perhaps irresponsible to rule it out, as Majority Leader Steny Hoyer seemed to do Thursday afternoon.
Given that, the best plan for House Democrats on obstruction is probably the same as their best plan on Russia: Tell the story, clearly and firmly, in a series of hearings. And see where it leads. It’s quite possible that Republican politicians are fully determined to stand by Trump no matter what, and that public opinion at this point isn’t going to change. If so, a partisan impeachment and trial in the Senate with the president surviving on a party-line vote serves no obvious purpose.
It’s also still possible that many voters who haven’t paid much attention so far would do so if congressional hearings proved sufficiently riveting, and that public opinion therefore would be more subject to change than it’s seemed so far. It’s also possible that at some point, Republican politicians might conclude that they would rather take on the risks of dumping Trump and having Mike Pence as president than continuing to support someone who many of them no doubt see as unfit for office.
Either way, the next step is up the House.
(1) The Clinton defense in the Senate basically acknowledged that he had lied, but argued that it did not rise to the level of an impeachable offense. That was the first article of impeachment. But on obstruction of justice, the defense claimed, with a good deal of justification, that the House's case was fanciful. In other words, there was general agreement that obstruction merited impeachment and removal even if it was over something minor, but Democrats and some Republicans just didn't think that Clinton committed that offense.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.