The Case Against Impeachment Hearings Grows Weaker By The Day
Robert Mueller threw down the gauntlet to Democrats in the House with his first public statement today. Mueller made it very clear that his report was a documentation of the crimes the President has committed and a referral to Congress to prosecute those crimes. Mueller made it clear once again, as he did in his report, that “if we had had confidence that the president clearly did not commit a crime, we would have said so” but that “[c]harging the president with a crime was therefore not an option we could consider”, in part because “the constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing”. That other process is impeachment.
Mueller also made clear that he has already done all the work he will do for Congress, explicitly stating that “Any testimony from this office would not go beyond our report. It contains our findings and analysis and the reasons for the decisions we made. We chose those words carefully and the work speaks for itself. And the report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress”.
However, the fact that Mueller will simply regurgitate what he has written in the report does not negate the powerful impact of him publicly testifying in front of Congress as to what he has documented. That is well illustrated by the reaction to what he said on camera today, which really provided nothing more than what was in his report, and the number of Democrats who have hopped on the impeachment hearings bandwagon just since his statement.
There are certainly valid reasons for not pursuing impeachment hearings now. There are other reasons, often stated by Democrats, that hold no water. One of those is that, with the President almost certain to avoid conviction in the Senate, Trump will be able to claim exoneration on all the charges going into the 2020 election. The problem is that Trump has been and will continue to claim exoneration regardless. That is the essence of his “no obstruction, no collusion” mantra. Moreover, the impeachment charges against Trump must expand beyond the Russian investigation and also include his violations of the Emoluments Clause and other corruption, his abuse of power in defying Congressional subpoenas, and, perhaps, his abuse of emergency powers.
Another argument is that impeachment hearings would distract from the legislative agenda that Democrats want to set for the 2020 election. There are really two areas where this argument falls apart. First, there is no reason that House Democrats can’t pass important legislation while holding impeachment hearings. Yes, the media focus will be on impeachment and the bills the House passes will largely go unnoticed. But those bills largely go unnoticed now simply because Mitch McConnell will never let the Senate take any of them up. I follow politics pretty closely and I only remember HR1, the anti-corruption, voting rights bill, and HR9, which attempted to restore US participation in the Paris Climate Agreement. The bills that the House has passed on equal pay, lowering prescription drug costs, and background checks to purchase guns have all happened in the background. And regardless of what the Democrats pass in the House, the Senate will do nothing and Trump will continually repeat that “Democrats are getting nothing done”.
Secondly, the reality is that the Democratic agenda in 2020 is not going to be set by House Democrats. It is going to be set by the Democratic nominee, whomever that may be. And virtually every current candidate for the nomination has a plethora of detailed policy proposals that will separate him or her from Trump and the Republican party. For the individual members of Congress, their position on those policies will be far more important to their re-election than a bill that they helped pass in the House or supported in the Senate that went nowhere. And for the Democratic nominee, it will be very easy to stake out a position on impeachment and still be able to focus on the policies they will pursue.
At this point, there are only two real arguments against beginning impeachment hearings. The first would be a genuine belief that those hearings would rile up Trump’s base and get them to come out in force in 2020. The second is that impeachment looks to be unpopular in the vulnerable House districts Democrats won in 2018 and those states where Democrats hope to both defend and pick up Senate seats in 2020.
Both of those arguments can be reasonably questioned and there is at least some evidence that the underlying basis for both of them is flawed. While polls show the majority of Americans currently oppose impeachment, that result is somewhat skewed by the almost universal opposition from Republicans. In fact, the base of somewhere around 30 or 40 percent, depending on the poll, that does support impeachment is already remarkably high before any hearings have begun. Most Americans have not read the Mueller report and have not focused on Emoluments violations and other misdeeds unrelated to the Russia investigation. Any explication of the details related to those areas, especially in public testimony, is far more likely to increase public acceptance of impeachment rather than diminish it.
Moreover, a near majority of voters already believe that Trump has probably committed crimes before and/or after taking office. Again, it is hard to see that number decreasing as more and more evidence of his crimes is publicly detailed. Based on the static nature of Trump’s approval rating, most voters view of Trump is already baked in. There is a core of between 40 to 45 percent that support him no matter what and a core of around 55% that oppose him no matter what. Why there is the strong belief that impeachment hearings would move those numbers in any substantially negative way for Democrats seems hard to imagine. Trump has certainly shown no ability or inclination to “stay above the fray” and work on legislation as a way to distance himself from the impeachment process. In fact, the opposite is more likely to occur, as Trump stains himself with even more absurd and brazen attacks on Democrats and the law.
In addition, the positive reaction to Justin Amash’s principled stand on moving forward with impeachment from his Republican constituents brings into question how much impeachment will galvanize Republican support for Trump. Admittedly, Amash himself is sui generis and Trump only carried this district with under 52% of the vote and Amash with just over 54%. But it does show that the voters will respond positively to principle and courage.
Democrats will largely be running on some core principles in 2020 – health care is a right, a woman’s right to choose, and climate change is an existential crisis, among others. As Amash claims, it is hard to claim you stand on principle when you allow the President’s actions go unrestrained. As Amash puts it, “I think it’s very important that we do our job as a Congress — that we not allow misconduct to go undeterred…I’m confident that if you read Volume 2 (of the Mueller report) you’ll be appalled by much of the conduct. I was appalled…We should expect the president to uphold the law…My job is to uphold the constitution”.
By dithering and taking readings of the political winds instead of actually standing on principle, Democrats also run the real danger of looking weak, a perpetual problem for a party composed of differing blocs of constituents. As Matt Ford notes, “Nothing could make Democrats look weaker than spending the next two years warning that Trump is an existential threat to American democracy, then telling voters that it’s not worth the trouble to impeach him”. In addition, the weakness the Democrats have already shown may have emboldened the President to totally stonewall virtually every attempt at oversight that House Democrats have made. By moving forward with impeachment hearings, Trump’s defiance of valid subpoenas take on a slightly different color while at the same time prompting the courts to move more expeditiously in resolving the constitutional issues that the President might try to raise.
Lastly, while defeating Trump would be an important victory for Democrats, the fact remains that whatever Democrat defeats him in 2020 will largely be powerless if Republicans still control the Senate. It would seem logical to force Republican Senators to actually take a vote to defend Trump’s efforts to commit obstruction of justice, to defend his personal corruption and violations of the Emoluments Clause, and to defend his multiple abuses of power. That is a vote that every Senate Republican could be made to wear around their neck like an albatross. Simply because we believe that those Senate Republicans will take that vote to defend Trump’s criminal behavior seems like a poor political reason not to make them take it.
The core of the Mueller report has been available for well over a month now and any close reading of it indicated that it was an impeachment referral to Congress. It was the responsibility of Congress to publicly present and explain the information in the Mueller report to the American people. Impeachment hearings are not impeachment itself. They are a process to explain to the American people the President’s violations of our Constitution. Yet, in the subsequent month plus, not one fact witness in the report has testified publicly to Congress. The only such witness who has testified publicly since Democrats took the House is Michael Cohen, who testified in February and whose testimony pointed to potential tax and bank fraud by the President while he ran the Trump organization that prompted further Congressional investigation. Today, Mueller merely repeated that referral publicly today. He is virtually begging House Democrats to fulfill their constitutional duty. As Justin Amash just tweeted, “The ball is now in our court, Congress”. It’s time to open impeachment hearings.