It took practically no time after the revelation that special counsel Robert Mueller’s report “does not exonerate” President Donald Trump of criminal activity for Trump to assert that the report is “a complete and total exoneration.” Yet on obstruction of justice, according to Attorney General William Barr, the Mueller report “sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as ‘difficult issues’ of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.”
Trump may think himself exonerated because of Barr’s independent conclusion “that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” Barr’s letter states that he and Deputy Attorney General Rod Rosenstein believe there is insufficient evidence to establish that the president, with “corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding.” Such are the elements of the relevant federal criminal statute.
But even if Barr’s judgment were well-founded—which cannot be assessed without release of the Mueller report itself—Trump might want to familiarize himself with the case of Florida Rep. Alcee Hastings. Hastings, a Democratic member of the U.S. House of Representatives since 1992, holds the distinction from an earlier career of having been the sixth federal judge in American history to be impeached, convicted, and removed from office under Article II of the Constitution. A Congress under Democratic control, in 1989, convicted and removed then-Judge Hastings, a Jimmy Carter appointee, because of his role in “a corrupt conspiracy” to extort a bribe. They did so even though Hastings had actually been tried for the offense and acquitted.
The Hastings conviction is consistent with what professor Stephen M. Griffin appropriately calls the “Hamiltonian vision” of high crimes and misdemeanors—namely, that the impeachment process and our criminal law run on separate and not always intersecting tracks. Some abuses of office may be impeachable though not indictable, and some crimes, though indictable, will not be impeachable. That is because, as Hamilton wrote in Federalist No. 65, what makes an offense impeachable is not its criminality, but “the abuse or violation of some public trust.” Such offenses, he explained, “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” Professor Michael Gerhardt, a leading academic writer on impeachment, has summarized the scholarly consensus: “The major disagreement is not over whether impeachable offenses should be strictly limited to indictable crimes, but rather over the range of nonindictable offenses on which an impeachment may be based.”
The implications for Trump are twofold: First, should Congress find that presidential corruption has so undermined the legitimacy of the incumbent as to warrant impeachment, the non-criminality of his corruption would not be a constitutional defense. Second, should Congress deem the president guilty of criminal obstruction of justice, it would likewise be irrelevant that the Department of Justice had decided not to bring charges.
In his recent paper, Griffin suggests that our three historical experiences with presidential impeachment—the impeachments of Andrew Johnson and Bill Clinton and the case of Richard Nixon—might imply that a new constitutional understanding has evolved. We might now be living with a contemporary constitutional understanding in which indictable criminality has actually become a constitutionally necessary element for presidential impeachment. Griffin argues, given the depth of party polarization in what he calls our “tribal times,” there will never be a public consensus as to the nature of “abuse of office” sufficient to support impeachment and conviction without a showing of indictable criminality.
Griffin is no doubt right about party politics. But his suggestion that the Hamiltonian understanding has been displaced is, in my view, both wrong and dangerous.
The Clinton episode shows why the theory is mistaken. The conflict dramatically illustrates that the public’s perception of whether impeachment is appropriate rests centrally on the character of the alleged corruption, not its technical criminality. It is true that the House voted articles of impeachment based on obstruction of justice and perjury before a grand jury. It rejected an article that would have been based on alleged misstatements in response to a questionnaire from the House Judiciary Committee. But the criminal allegations, both serious and plausible, never gained traction beyond the House because the public was never persuaded that Clinton’s underlying wrongdoing—his extramarital affair with a White House intern—was sufficiently corrosive of his legitimacy to warrant removal from office, even if he lied about it.
In Nixon’s case, the focus of the House Judiciary Committee on Nixon’s criminal conduct led it to reject a charge that he had “authorized, ordered, and ratified the concealment from the Congress of the facts and the submission to the Congress of false and misleading statements concerning the existence, scope and nature of American bombing operations in Cambodia” in 1969. Yet as famously argued by the late John Hart Ely, Nixon’s secret and unilateral war-making dwarfed in constitutional importance the abuses of power for which the House Judiciary Committee approved impeachment articles. To accept a new understanding that the focus of impeachment must be on criminality risks leaving abuses of trust undisciplined that may profoundly endanger our constitutional system, even though they are not crimes.
It should also be observed that, in our tribal times, not even agreement on criminality will prevent trench partisan warfare surrounding impeachment. If the House Judiciary Committee declines to focus its upcoming inquiries on potentially non-criminal corruption—such as Trump’s regular apparent emoluments violations—it will be pursuing a consensus unlikely to be achievable based only on offenses that might also be crimes. A fact-filled record on non-criminal corruption, if sufficiently dramatic, would be more likely to promote consensus than accusations regarding crimes that the president’s defenders believe are not serious.
Thus, Barr’s non-prosecution decision should have little to do with the House Judiciary Committee’s investigations. The “ ‘difficult issues’ of law and fact” uncovered by Robert Mueller need to be pursued. There needs to be fact-finding on what Franklin Foer has called the possible “adjusting [of] foreign policy for the sake of personal lucre,” which, if proven, would be damning, even if not criminal. Trump’s efforts to undermine the investigation of the 2016 campaign might themselves be viewed as impeachable, even if there was technically no underlying criminal conspiracy with the Russians that could be charged to specific Trump campaign officials. As Benjamin Wittes has noted, “knowingly and gleefully benefiting from a foreign power’s theft and disclosure of a political opponent’s emails isn’t, without more, a crime.” But such conduct would be scandalous, even disgraceful, and would certainly cast Trump’s attacks on the Mueller investigation in a yet more sinister light. If Mueller developed compelling evidence of such misconduct, that, too, might well cast doubt on Trump’s legitimacy as president.
None of this is to deny, of course, that the ultimate decision to impeach or not will take politics into account. The present point only is that the Barr letter is largely immaterial to the House’s constitutional responsibilities. A purveyor of one of the most expansive views of executive power in all of law concluding that a federal prosecutor could not persuade a jury beyond a reasonable doubt that the president obstructed justice is not exactly “exoneration” even in the criminal law context. In the impeachment context, it’s irrelevant.
