Now that the special counsel’s report is public, here is what Congress should do with it
American voters waited almost two years for the Mueller report. Most of its findings turned out to have already been published over the previous 13 months by investigative reporters and in indictments issued by Robert Mueller’s office. But that makes it no less extraordinary. While the special counsel found no evidence to sustain a conspiracy charge, he described a campaign eager to co-operate with a foreign adversary and a president who may have obstructed justice. This leaves America’s system of checks and balances in an uncomfortable position.
What the report lacks in novelty it makes up for in thoroughness, adding detail and credibility to accounts about the behaviour of the Trump campaign and administration that might otherwise have been dismissed as thinly sourced or ideologically motivated (see article). It shows a campaign, a transition team and then a White House run by a person who will lie about the most serious issues and who tells his staff to break the law in order to obstruct justice—including by sacking Mr Mueller. President Donald Trump’s summary of the report (“no collusion - no obstruction!”) and his attorney-general’s attempt to spin it as a paean to presidential virtue are further examples of the administration’s contempt for facts.
All elections are street fights, but Mr Mueller and his team showed that Mr Trump’s campaign staff in 2016 placed America at risk from a foreign adversary. The campaign knew about and encouraged Russian efforts to help his election; the Russian government concluded that a Trump victory would be in its interests and so worked towards that end. What saved the president was the absence of a formal agreement to co-ordinate their efforts.
What, if anything, should Congress do with Mr Mueller’s findings? The special counsel explained he had not charged the president with obstruction of justice, in part because of a guideline drawn up by the Justice Department in 1973, amid Watergate, which says that the federal bureaucracy cannot indict its own boss. The authors of the constitution made it clear that Congress has the task of dealing with a rogue president.
Should it therefore start impeachment hearings? The best argument for this is that failure to sanction Mr Trump would establish a precedent, signalling to some future president that the lying, the footsie with Russia and attempts at obstruction are just fine. Yet rushing into an impeachment would still be a mistake.
Impeachment is a hybrid. It is part legal, because it involves a trial; but the framers intended it to be political, too, because the trial is conducted by elected representatives who, inevitably, think as politicians. Were Mr Trump to be impeached now by the Democrat-controlled House he would be acquitted in the Republican-controlled Senate. This would not be much of a rebuke. When someone is found not guilty in court, that is usually taken as an exoneration. If Democrats dismissed an acquittal as partisan nonsense, Republicans would likewise ridicule the decision to impeach. There is a risk that a failed effort to remove Mr Trump would boost him as he is seeking re-election, as it boosted Bill Clinton. Democratic leaders in the House calculate, probably correctly, that impeachment is not in their interest either.
That leaves America’s constitution in a quandary. One of the guiding principles of the experiment undertaken in 1776 was that no man should be above the law. Having just got rid of one unaccountable tyrant, the founders were keen to prevent the emergence of a homegrown version. Set against this, they did not want the president tied down by petty legal squabbles. The founders therefore meant removing a president by impeachment to be hard, to become possible only once a significant number of the president’s own faction had deserted him.
Yet the founders did not foresee the rise of a rigid two-party system that mirrors the rural-urban divide. That makes it very hard in practice for either faction in the Senate to assemble the two-thirds majority required to convict the president in an impeachment trial, unless the rank and file of their party move against the president, too. Lined up the right way, senators who represent 25m citizens could acquit a president, against the wishes of senators who represent 300m. Getting rid of a rule-breaking president was not supposed to be this difficult.
The result is that one man is, in effect, above the law for all but the most serious and readily understandable crimes, such as murder, which would surely be too much even for the committed partisans of either side. Congress should legislate against such impunity at a later date. Most democracies have independent prosecutors able to indict the chief executive.
Right now, Congress should also take up Mr Mueller’s invitation to do its part by using hearings to give his witnesses the chance to tell the American people what happened. The House should impeach only if the case builds over the coming months, leading Republican senators to change their position. An impeachment that fails along party lines is worse than useless. Better to trust the wisdom of voters in 2020.
Source: The Economist