Rep. Justin Amash thinks Donald Trump is guilty of “impeachable conduct,” and he is absolutely right. Impeachable conduct is whatever the House of Representatives decides it is, a point the president’s defenders and some of his critics seem determined to obscure.
The House impeached Bill Clinton for lying under oath about oral sex, and the conduct described in special counsel Robert Mueller’s report is more troubling and consequential, even if it does not amount to a crime that could be proven beyond a reasonable doubt. When Amash, a five-term Michigan congressman, became the first Republican legislator to make that point, the reaction revealed how determined his colleagues are to evade their responsibilities.
Mitt Romney, the Utah senator and former Republican presidential nominee who a month ago said he was “sickened at the extent and pervasiveness of dishonesty and misdirection” detailed by Mueller, this week praised Amash’s “courageous statement” but added that he disagreed with his conclusion. Romney argued that “you just don’t have the elements” to “make a case for obstruction of justice.”
The Mueller report actually makes a strong case that at least some of Trump’s attempts to interfere with the investigation of Russian efforts to influence the 2016 presidential election involved the three elements of obstruction: an obstructive act, a nexus to an official proceeding and a corrupt intent.
When Trump tried to stop the FBI investigation of his former national security adviser, repeatedly demanded Mueller’s removal, pressed White House counsel Donald McGahn to deny that Trump had tried to fire Mueller, urged his attorney general to take control of the Russia investigation and limit its scope and discouraged witnesses from cooperating with it, he arguably met all three criteria.
Mueller unambiguously rejected the view, advocated by Trump’s lawyers and Attorney General William Barr, that the president cannot obstruct justice by exercising his otherwise lawful constitutional powers, which include control of the Justice Department. But even if you accept that theory, it does not cover Trump’s public and private attempts to influence the testimony of witnesses such as McGahn, his former lawyer Michael Cohen and his former campaign chairman, Paul Manafort.
The fact that Trump’s frequently clumsy efforts to impede federal investigations were mostly unsuccessful (mainly because of resistance by his underlings) does not get him off the hook, as attempted obstruction is also a crime. Nor does it matter that Mueller ultimately found no evidence that anyone in the Trump campaign illegally conspired with Russian agents.
Trump himself did not know the answer to that question in advance, and in any case, he may have been motivated by a desire to prevent revelations that could prove embarrassing and politically damaging.
More to the point, as Amash noted, the “high crimes and misdemeanors” that justify impeachment extend beyond provable statutory violations to abuses of power that betray the public trust. Trump’s own lawyer, Rudy Giuliani, last year conceded that it “would just be unthinkable” for Trump to pardon himself, which “would lead to probably an immediate impeachment,” even though the Constitution imposes no limits on that power.
Congress might reasonably conclude that a president who uses his powers to protect himself in a less dramatic way — say, by repeatedly interfering with an investigation of his own actions — is unfit for office. Perhaps the norm of avoiding even the appearance of such interference is worth preserving, whether or not it is legally required.
Romney argues that impeachment would be unwise in terms of “practicality and politics,” as “the American people just aren’t there” and the Republican-controlled Senate, which would conduct the trial that follows impeachment by the House, “is certainly not there either.” House Speaker Nancy Pelosi, who is discouraging her fellow Democrats from pursuing impeachment, seems to have reached a similar conclusion.
It is hard to argue with that political calculation. But members of both parties may come to regret the signal they are sending about the sort of presidential behavior Congress is willing to tolerate.