Government

The Mueller Report Makes Clear The President Committed Crimes And Failed His Oath

Initiating the process of impeachment is warranted given the evidence in the report, but political considerations will logically suggest foregoing such a process in a deeply divided country.

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Robert Mueller (Photo by SAUL LOEB/AFP/Getty Images)

Since the release of the Mueller report last week, the president has repeatedly claimed to have been completely exonerated. To anyone who has read the entire report or even the first few pages, this claim is rather quickly exposed as an obvious lie (Mueller explicitly states that he does not exonerate the president for one thing). Equally obvious after reading the report is that such blatant lies, deceptions, and criminal acts are common when it comes to this president.

Arguably, the most egregious exposure from the report is the significance of repeated contacts detailed in the first volume between the president’s campaign team and individuals linked with the Russian government. It has always been nothing short of absolutely damning that top members of the president’s campaign team including Michael Flynn (the president’s future National Security Advisor) and campaign chairman Paul Manafort not only regularly engaged in communications with Russia, but also later lied about these contacts. In the report it is revealed Manafort regularly shared campaign material such as polling data with individuals linked to the Russian government and a “peace plan” meant to give Russia the means of a “backdoor” to control Eastern Ukraine. The most disturbing aspect about all of this is we may never know the extent of the coordination by the president’s former campaign chairman and the Russians. The report acknowledges that members of the campaign “deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records.”

There is literally a hundred pages in the Mueller report devoted to chronicling all the contacts between individuals linked to the Russian government and the president’s campaign team that, in the interest of time, I will not summarize here. But, as noted by the team of writers at Lawfare, it is worth remembering “the frequency and certitude” that the president and members of his campaign “told the American people that there had been no contact with Russians during the campaign.”

The first volume of the report also illustrates in disturbing detail how the president and top members of his campaign team were not only reasonably aware that the Russians were engaging in arguably illegal activity to help them win, but also welcomed such activity and sought to capitalize from it. This exposure presents a stark rebuke to the president. The fact that a president who portrayed his campaign as being about “America first” was welcoming of and indeed actively capitalizing on illegal acts committed by our top foreign adversary against fellow Americans is a gross spectacle to behold.

The second volume of the report relates to a “variety of actions” taken by the president “towards the ongoing FBI investigation into Russia’s interference in the 2016 presidential election and related matters that raised questions about whether he had obstructed justice.” The second volume is, from the beginning, explicit that because of a long-standing Office of Legal Counsel directive that a sitting president cannot be prosecuted, the Special Counsel would not be issuing a prosecutorial judgement. Judgment is instead left to Congress — the entity the Constitution reserves as the check on an unfit executive.

The second volume details no less than 10 instances of possible obstruction by the president and then analyzes whether evidence from each instance satisfies the three elements of a criminal charge of obstruction which the report identifies as: 1) an obstructive act; 2) a nexus with an official proceeding; and 3) a corrupt intent. Although no prosecution judgment is issued, in a majority of these instances including the firing of former FBI Director James Comey, the president’s order to fire the Special Counsel and then to have his White House Counsel Don McGahn lie about such order, and another effort “to curtail the Special Counsel’s investigation” by severely limiting its scope, the report makes clear all the elements of obstruction are satisfied. In other words, while the report does not make a prosecutorial judgment it does explicitly offer Congress, the only entity that can punish such behavior, substantial evidence the president is guilty of repeated criminal conduct.

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The kinds of criminal acts exposed in the report necessarily invoke the question whether Congress will initiate the process of impeaching the president. Standing in the obvious way of impeachment are several practical and political considerations. First, true to form, the reaction by members of the populist right and many Republican members of Congress to the report has been to further the dishonest and dishonorable claims of the president that the report completely exonerates him. Finding enough members of Congress from the president’s own party to break with him represents a formidable barrier to impeachment.

Second, as noted by conservative critics of the president such as David French, at this stage in the president’s first term, much more practical, political, democratic considerations must be considered in the debate on whether to impeach:

The path to accountability runs through the American people. Savvy politicians like Pelosi understand Hamilton well enough to know that America’s “pre-existing factions” shouldn’t be further inflamed absent the most compelling need, especially when the President will soon face the jury that truly matters–an engaged electorate ready to render its verdict.

I understand and sympathize with these arguments against impeachment in favor of another form of our democracy deciding through the nation’s vote. I would even say it could be seen as prudent for the future political prospects of Democrats to take this advice and leave it up to the electorate in 2020. The prospect of the president losing in 2020, is to me however, just as likely as the outcome of impeaching the president. Both prospects will face uphill battles, yet both can be plausibly accomplished given the circumstances. Moreover, if Congress gains access to the many redacted versions of the report, it is entirely possible more consensus is built in the face of ever-increasing evidence of unethical and criminal behavior.

Lastly, it is worth arguing that political considerations should not override the fact the president appears to have satisfied enough elements to be charged with repeated crimes and utterly failed to hold to his oath. In response to other illegal acts committed by hostile foreign powers against Americans, the president has chosen to focus his attacks and criticisms on the Americans charged with investigating and discovering such illegal activity and preventing it in the future. At absolute minimum therefore, the report makes clear the president put his personal interests above the nation’s in deplorable and highly destructive moments, choosing repeatedly to capitalize on a hostile foreign nation’s criminal acts towards Americans. I view such behavior contained in the report more akin to an enemy of this country’s stability than that of a patriot, and such behavior is not what our Constitution should accept from any president. Congress has been given the responsibility to exercise its Constitutional authority to punish this behavior and this duty should supersede possibly better future political prospects.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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