Democrats Can’t Simply Ignore Impeachment

Since the day Trump was declared the winner of the 2016 presidential election, scholars, pundits, activists and concerned citizens have speculated, debated and prognosticated about how the Trump presidency would end: impeachment, indictment, electoral defeat after one term or departure after a second term.  Recent events have thinned the fog just enough to show tantalizing glimpses of a future that bodes ill for Trump.  While the new House majority must proceed carefully, the 2018 electorate, the Mueller investigation, and the economy have all signaled that the new House majority must prepare for impeachment.

Democrats produced overwhelming success in the midterm elections, racking up a record popular vote for House candidates and gaining at least 40 House seats, a number suppressed by Republican gerrymanders.  Democrats gained seven governorships and over 350 state legislative seats.  The vote can only be interpreted as a massive rejection of Trumpism.

Democrats remained admirably disciplined in avoiding talk of impeachment in their campaigns, focusing instead on healthcare and other kitchen table issues and allowing room for pervasive anti-Trump sentiment to work.  The new House majority must continue to focus on substantive legislative issues, such as healthcare and the strengthening of our electoral system.

The House, however, must also pursue its constitutional obligation to oversee the operation of the executive branch.  That means conducting real investigations into the rampant corruption polluting the Trump administration from the glaring abuses of office and conflicts of interest of Ryan Zinke, Wilbur Ross and others to the unfitness of acting Attorney General Matthew Whitaker.  Add to the list an inquiry into the shocking and unexplained sweetheart deal then U.S. Attorney and now Labor Secretary Alex Acosta gave serial sex offender Jeffrey Epstein.

The new majority must also restart the Intelligence Committee’s misdirected and truncated investigation into the Russian attack on the 2016 election and the Trump campaign’s involvement with Russia.  It must also bring the Judiciary Committee back to life.  The Republican leadership refused to use the committee’s power to investigate Trump’s open violations of the Emoluments Clause of the Constitution.  The committee should also investigate whether Brett Kavanaugh lied during his confirmation process.

The Judiciary Committee must investigate Trump’s efforts to obstruct Mueller’s investigation, as well as any other possible violations of law committed by Trump and his administration.  Here, the House’s constitutional obligations crash into its reluctance to pursue impeachment.

Democrats’ default campaign position has been that any consideration of impeachment must await the resolution of Mueller’s investigation.  That position worked well for the midterms, but it isn’t a legitimate governing strategy.  First, much of Trump’s misbehavior is at or barely below the surface.  As soon as the committee starts digging into issues such as Trump’s acceptance of emoluments or his obstructive firings and statements, it will have in hand powerful evidence supporting articles of impeachment.  It can sit on the evidence for political reasons or it can start discussing its relevance to impeachment.

In addition, the wait-for-Mueller strategy rests on a possibly flawed understanding of what Mueller’s investigation is about.  The conventional wisdom has it that Mueller will do his investigation, write a report, and (if the Attorney General is willing) ship it to Congress.  In reality, Mueller is a prosecutor performing his assignment by prosecuting.  He has issued detailed indictments and other pleadings that are sometimes constrained or redacted.  Together, however, they show that he is building the narrative that will constitute his report, whether it is transmitted formally to Congress or not.  Congress cannot simply sit passively until Mueller announces he is finished.  It needs to build a base that will allow it to move efficiently to consideration of impeachment when big events break or Mueller reports.

Part of that effort must be enhancing public understanding of impeachment, including the application of impeachment history and standards to unfolding events.  The Mueller investigation will continue to produce regular bombshells that the House must identify as part of a narrative that may lead to impeachment.  Otherwise, if Mueller issues a final report that is largely a compilation of events learned along the way through court papers, Trump defenders will point to House inaction as a defense to impeachment.

Obviously, even if the House were to adopt articles of impeachment, two-thirds of the Senate would not convict Trump based on existing evidence in the current political situation.  Both the evidence and the political situation, however, will change.  Mueller’s busy week reveals that Michael Cohen has told all at great length and that Michael Flynn has been a valuable cooperator in the collusion investigation, as well as two others that remain unidentified, but likely involve obstruction of justice and Flynn’s work on behalf of Turkey.  The imminent Manafort sentencing memo may tell more.

While Senate Republicans have backed Trump blindly, that can change, just as it did with Richard Nixon, who retained strong party support until release of the Watergate tapes.  Mueller may produce comparable evidence.

Meanwhile, Trump’s political hold on his party will soften.  Republicans understand that voters repudiated Trump, despite an economy touting gaudy growth and unemployment numbers.  The economic outlook, as signaled by the stock market, is increasingly shaky.  The deficit-fueled tax cut sugar high will wear off and Trump’s erratic leadership, featuring trade wars, assaults on the Federal Reserve, and self-enrichment will take its toll.  Trump’s Teflon coating will wear away as the economy slows and voters feel it.

Trump’s grip has already slipped in small ways that suggest movement.  Sen. Jeff Flake is refusing to support any judicial nominees until the Senate votes on legislation to protect Robert Mueller.  A majority of the Senate has rebuked Trump for coddling Saudi Arabia following the killing of Jamal Khashoggi.

Ultimately, Trump’s fate may be determined at the ballot box, but constitutional duty may require that the House initiate impeachment.  The House needs to prepare for that possibility.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.