Following the publication of the Mueller report, the Democratic Party is torn over whether or not to trigger a process of dismissal. Both options carry risks for them, but the affirmative would have the merit of consistency.
What will the Democrats in Congress do with the Mueller Report, which they have been waiting so impatiently for? The choice would have been simpler if the report had concluded with an explicit recommendation to formally indict the president, but that was not done. This does not mean that it is necessary to passively accept the hasty conclusion drawn by the supporters of President Trump, led by Attorney General William Barr.
The Mueller report opens the door to a process of impeachment
The special prosecutor was to rule on two possible indictments: that of plotting with Russian agents in their illegal interference in the 2016 campaign and that of obstruction of justice for obstructing the normal course of investigations into this case. In his presentation of the report, Barr pointed out that the special prosecutor did not find sufficient evidence to conclude that the Trump campaign had coordinated his actions with those of Russian agents to the point of exposing himself to conspiracy charges. In the second part of the report, Mueller identifies several actions that may be construed as hindrances to justice. He refrains from recommending an indictment but also refuses to exonerate the president. Barr and the president's supporters have concluded that Donald Trump was clear of suspicion, but that's not what a careful reading of the report suggests.
Mueller notes clearly that the Department of Justice's directives and conventions limit the use of criminal prosecution against a sitting president. As he could decide if he found the evidence insufficient to lay charges, which he did in the first part, the fact that he refrained from doing so in the second part can only be interpreted as a implicit admission that Mueller considers that there is enough material for an indictment, but that he entrusts others to do so. He goes on to say that the Constitution gives Congress the responsibility to judge potentially criminal acts of a president, while taking care to stress that no one, not even the president, is above the law.
Translation: Robert Mueller believes that there is sufficient evidence to formally accuse Donald Trump of obstruction of justice and he gives all affidavits that support this evidence. Therefore, he implicitly acknowledges that an impeachment process would be justified, but he explicitly asserts that it is up to Congress to make the formal statement and act accordingly. What will the Congress do?
Destitute or not?
The impeachment process has two stages. First, it is the House of Representatives that must act as a "grand jury", or an indictment chamber. It's the impeachment. In the case of Donald Trump, it is highly likely that the Democratic House would not be limited to the charges of obstruction of justice that flow from the Mueller Report. It would probably add a mention of the two major offenses for which his ex-lawyer Michael Cohen has already been convicted, not to mention the potential charges related to the president's apparent derogations from the emoluments clause, conflicts of interest and possible financial malfeasance. related to ongoing investigations. Moreover, even if the Mueller report believes that the interactions between his campaign and the Russian agents do not reach the threshold of crime in the legal sense, it is not excluded that the Congress still condemns these interactions with an opposing power. declaring them contrary to the national interest.
It is almost certain that the Democratic majority in the House of Representatives would vote almost unanimously for the "impeachment" of Donald Trump, as the Republican majority voted en bloc against Bill Clinton in 1998. A lawsuit would follow. in the Senate, chaired by the Chief Justice of the Supreme Court. To remove the president, two-thirds of senators should vote in favor, which would mean that 20 of the 53 Republican senators should join 45 Democrats and two independents to condemn and dismiss the president. Big order.
This is believed by virtually everyone in Washington. President Trump has such a hold on his electoral base that most observers consider extraordinarily improbable a two-thirds condemnation of the Senate. Several Democrats are concerned that if the President is indicted (impeached) but not dismissed (removed from office), the republican base would be galvanized and the president would be strengthened in 2020. They prefer to continue the ongoing parliamentary investigations to expose the various ways they want to expose voters by November 2020. In short, go forward with a formal indictment is politically risky for Democrats. This is the position defended to this day by the leader of the Democratic majority, Nancy Pelosi.
There is, however, growing pressure to trigger the impeachment process, even if there is little hope that it will succeed. The proponents of this option rightly point out that the conclusions of the Mueller report leave them with little choice, since the refusal to start an impeachment process would amount to a tacit recognition of the president's innocence, which would give him an unexpected legitimacy. before the electorate in 2020.
There is no obvious choice. If the Democrats do nothing, they concede their powerlessness to formally condemn the president because of an electoral calculation. It is also quite possible that such inaction would cause dissatisfaction among Democratic supporters that would harm the party in 2020. Especially since the proponents of destitution increasingly insist on the fact that it is about a question of principle. On the other hand, if the Democrats trigger the impeachment process, Republicans will accuse them of doing so for purely partisan reasons. This will incite them to distance themselves from a process that Trump has conditioned his followers to judge illegitimate. Since the Republican senators are likely to hide behind a narrowly partisan interpretation of the facts at the time of the final vote, they will probably end by acquitting Trump for no less partisan reasons. As Professor Caron would say, there will be no easy way.
What will the Democrats do? It is extremely difficult to make these kinds of forecasts, but as the debate progresses, the risks for Democrats to go out of control seem to me to go beyond those of pushing the process to its logical conclusion. First, in the electoral context, it is almost certain that the different factions of the party will seek to win the support of the most active activists and it is not by giving up on Trump that they will succeed. Second, the argument that Donald Trump would be reinforced by an impeachment vote followed by a not guilty verdict from the Senate is overrated. In 1998, Bill Clinton lost a lot of support in the electorate following his "impeachment" by the House even though the Senate had cleared him. In addition, the certainty that an impeachment vote could not garner 20 Republican votes in the Senate could also be overrated.
Therefore, for these and many other reasons, it would not be surprising if the principled position of the Democrats who want to sue the President ends up prevailing over the pragmatic calculation of those who resist. However, they must avoid waiting too long, so that the impeachment process is not too close to the election.
If an impeachment process is initiated, the only certainty we can have is that there are a multitude of imponderables that make the prediction of the end result extremely dangerous. One thing is certain, however, if they want to get away legally and politically, President Trump and his supporters will have to come up with stronger arguments than they have been mechanically repeating for months.
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Pierre Martin is Professor of Political Science at the Université de Montréal and Director of the Chair of American Political and Economic Studies at CÉRIUM. We can follow him on Twitter: @PMartin_UdeM