Mueller Report – The Road to Impeachment?

The Report also exposes Trump campaign’s members who lied to Special Counsel’s office and those who violated the law in numerous different ways. Yet, using a very strict and narrow reading of the law, the Report does not definitively establish a cooperation agreement between the Russians and the Trump campaign to reach their common goal. Because collusion is not a legal term, the Counsel looked for coordination and sought to find out if there was an agreement between the parties. In the absence of such an agreement, and with the proviso that the available evidence and the hitherto undiscovered ones can still shed a new light on the case and therefore may enable prosecution after the Presidential term is over, it concludes:

Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

Obstruction of Justice

The second volume addresses the comportment of the Trump administration and particularly the President himself. It investigates whether there were instances of "obstruction of justice." If one were to take the developments related to this investigation at face value, there is more than enough evidence to conclude that the President and members of his administration did obstruct justice.
 
Yet Mueller chose to obey the official guidance of the Office of Legal Counsel (OLC) of the Department of Justice that a sitting President could not be indicted while in office. This constitutional interpretation is influenced by the theory of the "unitary executive," which attributes extensive inherent powers to the President that include the direction of DOJ officials about who they can and cannot indict. In fact, the Report does put on record that "we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers". But Mueller expresses reticence because "we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern."

With so much evidence strongly suggesting at least strenuous efforts to obstruct the investigations, Mueller concludes the second volume’s findings with a somewhat enigmatic statement: "if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. … Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him."
 
In short, Mueller decides not to prosecute but leaves the door open for a political process that would, based on available evidence, pursue the matter of obstruction of justice. That process is called impeachment. As the authors of Lawfare, a blog mainly dealing with legal issues, put it "the Office of Legal Counsel found that ruling out presidential liability for criminal conduct was not a threat to the rule of law because of the availability of impeachment as a remedy".
 
For the Republican Party the matter is probably closed. Very few Republican Congressmen or Senators would be willing to or dare take a position against Trump for fear of reprisals from Trump’s radical base. For the Democrats, the Report presents detailed evidence of the crime of obstruction of justice; it shows an entente between the Russians and the Trump campaign. But the Democrats are politically reluctant to open impeachment proceedings, because they fear that this might backfire in the 2020 election. Yet the unchallenged evidence presented in the Report sharply pose the essential question: "Did Donald Trump violate his constitutional obligations to the American people?"

A politically disturbing fact in this story though, is that hidden behind this carefully worded and legalistic document which holds its punches and does not go ahead with what the investigators must have concluded, is a campaign that was politically dishonest. It benefited from Russian meddling in elections; used the material generated by the Russians to taint the opposition and undermine the opposing candidate’s credibility; sought business deals in that country looking for points of contact at the higher echelons of Russia’s power structure and consistently and relentlessly lied about many of these activities. And all this has taken place while Russian meddling in American elections became a matter of counterintelligence and possibly national security given the institutions, procedures and election hardware that had become compromised.

The reaction among the public to the findings of the Report was mainly a shrug. Ironically the reporting by Trump’s bête noir, the much-maligned mainstream media whose coverage of the case proved accurate probably dampened the shock effect of Mueller’s findings. If anything, the general public sees the entire exercise as nothing but a political power game, is not concerned with the constitutional issues at play and continues to be alienated from a political system that looks corrupt and insensitive.
 
Ultimately then, the resolution of the fundamental constitutional and legal issues will be left to the rough and tumble of the political process in a highly polarized country that has a President who does not care much for legalities, norms, comity or established rules. But the legacy of the Mueller investigation and Report lies within the possibility of proceeding with a legal case and prosecuting the crimes that were insinuated, when the times and circumstances are finally propitious for such an eventuality.

Copyright : JOE RAEDLE / GETTY IMAGES NORTH AMERICA / AFP