Sunday, March 24, 2019

Impeachment and the Mueller Report

Stephen Griffin

Now that Attorney General Barr has given us the basic conclusions of the Mueller Report, attention may turn to Congress's separate responsibility to determine whether President Trump has committed an impeachable offense.  Unfortunately, the way the president's opponents framed the issue around potential findings of criminality may have severely undermined any subsequent impeachment effort.  I analyze the historical trend toward emphasizing criminality or other violations of law in presidential impeachments in this article, which I have just updated on SSRN.  It is forthcoming in the Connecticut Law Review.

The point I find interesting, both in past impeachments and the present imbroglio around President Trump, is that basing impeachments solely on findings of criminality is not what the framers wrote, designed, wanted, expected, or any other test we would care to apply to the historical evidence.  The high crimes and misdemeanors standard was not limited to criminality, although a few commentators in American history have argued as such.  But once the Constitution was put into practice, so to speak, political consensus was hard to find absent the violation of a federal law or the commission of a federal crime.  That is why the inquiry into conspiracy and obstruction of justice has come to dominate the discussion with respect to Trump.  From an eighteenth-century perspective, what should happen is an evaluation of Trump's behavior using a common understanding of what constitutes a violation of the public trust.  Absent that common understanding, we are stuck with a federal criminal law approach to impeachment.  But as many have noted, asking whether President Trump has committed a crime distracts attention from his many other actions which raise serious ethical, legal, and constitutional concerns.  Even if Speaker Pelosi decides not to initiate an impeachment inquiry, there is still much for the House to investigate.

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