President Trump’s lawyer John Dowd argued that a president cannot obstruct justice because he is the chief law enforcement officer. (It sounds better in French - ” L’etat c’est moi!”) He was swiftly denigrated by lawyers and lay pundits, who pointed out that “several court cases and articles of impeachment — as well as, in the words of one expert, ‘common sense’ ” — suggest otherwise.
However, it’s also important to recall that the end game here is not necessarily conviction (in office or after Trump leaves) but impeachment. Even if Dowd’s theory were correct, it doesn’t protect Trump from impeachment and possibly removal from office.
Ben Wittes of Lawfare blog reminds us:
“Congress is free to regard as an abuse of power worthy of impeachment any number of valid exercises of presidential authority. Those that obstruct justice strike me as no different. . . [I]t’s perfectly possible that a pattern of obstructive conduct with respect to the Russia investigation can offer reasonable grounds for impeachment even if the criminal obstruction statutes themselves cannot reach the President’s conduct. Impeachment depends ultimately on abuse of power, not on criminal law violation, and abuses of power emphatically do include abuses of lawful power.”
A president can both commit a crime and commit an impeachable offense, but the latter doesn’t require criminal activity. It may be true that Trump wants lawmakers to think criminality is required, but by his logic Congress could then never impeach, since a president — according to Trump — cannot commit a crime. That makes a mockery of the Constitution.
As we have discussed, impeachable offenses can range from refusal to do one’s job (I’ll move to a desert island!) to abhorrent acts that aren’t in violation of any criminal statue (e.g. pardoning every white police officer in the District of Columbia who shoots an unarmed African American). Wittes posits that:
“if Trump, angry at Theresa May for her recent criticism of him over Muslim-hating video retweets, ordered all US nuclear submarines positioned as close to London as they could get while remaining in international waters, no question would arise as to his constitutional authority as Commander in Chief to issue such an order. But the House of Representatives would be perfectly entitled to ask whether such a commander should be relieved of his command.”
Aside from its legal defects, Dowd’s argument is tremendously unhelpful from a political standpoint when it comes to Congress, which has the power to impeach and remove. It’s one thing to try to convince fellow Republicans that he did not say or do the things he is accused of — or that they don’t rise to the level of an impeachable offense (Bill Clinton’s impeachment defense) — but forcing Republicans to adopt a “Trump is above the law” position seems exceptionally unwise. (Not only will some Republicans find that noxious — a few, at least — but there could also be no more effective message for the Democrats in 2018 and 2020.)
None other than John Yoo, a conservative lawyer and former Bush 43 Justice Department chief of the Office of Legal Counsel, points — correctly, in our view — to where the action should take place and when. He writes, with professor Saikrishna Prakash:
“If Mr. Trump has truly impeded a valid investigation, Congress should turn to impeachment, which allows for the removal of a president for ‘high crimes and misdemeanors.’ Impeachment does not require the president to commit a crime, but instead, as Hamilton explained in Federalist 65, encompasses significant misdeeds, offenses that proceed from ‘the misconduct of public men, or, in other words, from the abuse or violation of some public trust.’ Such offenses, he said, ‘are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.’
“The House and Senate can make their own judgments - political as well as legal - about whether the Trump team’s involvement with the Russians or Mr. Trump’s comments to Mr. Comey fit this constitutional standard. Congress can begin this course of action by forming a special committee to investigate the Russia controversy and the Trump-Comey-Flynn affair, which could also find any predicate facts for a case of impeachment. If Congress believes that these events do not merit obstruction of justice or illegal conspiracy, it should go on the record with its judgment, too - a result Mr. Trump would welcome.”
Moreover, Yoo and Prakash urge that “Congress should not wait on a special counsel to perform its most fundamental constitutional duty of investigating and, if necessary, removing a corrupt president.”
It is for this reason that I find it troubling and inappropriate for Democrats to refuse to discuss impeachment. A dialogue with the American people needs to get underway, and Republicans sure aren’t going to begin it. The supremacy of Congress here to decide what is impeachable and to undertake a serious effort to try and convict a sitting president should be vigorously defended.