On Thursday, the Department of Justice released a redacted version of the Mueller report to Congress and the public. Since then, what had been a mostly muted question as of late has only gotten louder: Should the president be impeached? What follows is a debate on the I-word between Slate’s Mark Joseph Stern, Jim Newell, Lili Loofbourow, Jeremy Stahl, Ben Mathis-Lilley, and Mike Pesca, along with Above the Law executive editor Elie Mystal and law professor Frank Bowman, author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. The conversation has been edited and condensed for clarity.
Mark Joseph Stern: Welcome to the start of impeachment season. As we all now know, special counsel Robert Mueller’s exhaustive (though partly redacted) description of Trump and his associates’ wrongdoing is sufficiently damning and has prompted impeachment talk from some liberal lawmakers. Specifically, Mueller’s account of the president’s efforts to obstruct justice are—at least to my mind—wildly incriminating. But Democratic leadership seems gun-shy, given the sky-high political stakes involved in an impeachment vote, plus the near-certainty that the Republican-controlled Senate would never vote to remove Trump from office. Jim, could you give us the lay of the Hill at this early date?
Jim Newell: The Hill is still in the first week of its two-week recess, so it’s hard to get a caucuswide feel so far. But the statements so far from leading Democrats, whether it’s Nancy Pelosi, Steny Hoyer, or Jerry Nadler, seem to indicate that they find the report quite damning, with Pelosi suggesting that Office of Legal Counsel guidelines were the determining factor in not charging Trump with obstruction. That makes it awkward, though, because the more they argue that Trump clearly obstructed justice, the more their deeply held belief that they shouldn’t impeach Trump because it would be politically risky doesn’t really hold up.
Jeremy Stahl: Jim, what are the political risks of impeachment, as House leaders see them?
Newell: The political view is: It wouldn’t go anywhere in the Senate, it would rally the president’s base, and it would distract from Dems’ message on kitchen-table items that people care more about, like health care protections. These … are good points!
Elie Mystal: I mean, I think this should start with the law. Impeachment is the only constitutional remedy for a president who commits crimes. It’s the only remedy for obstruction of justice. The president could be indicted and convicted of crimes and go to jail, and still be president, absent impeachment. Talking about it as a political strategy cedes the highest of grounds. Congress needs to impeach him to uphold their oaths of office. The politics should be secondary, and the fact that they’re not is why Democrats fail.
Newell: I think it would look pretty party-line. Nowhere near the 20 Republicans Democrats would need.
Mystal: Let the Republican failure to convict be a pox on their heads. Let that be their sad legacy.
Frank Bowman: I may disagree to this extent. First, impeachment is a political process, and designedly so. Despite the bold pronouncements of some, there is nothing in the Constitution that “requires” the House to commence an impeachment anytime a case can be made out that the president committed a crime, even a felony. That, if anything, is the lesson of Clinton—who surely did commit perjury, and very probably obstruction of justice as well. Congress is obliged to make a seriousness determination and, I think, is also entitled to make a purely political judgment about whether an impeachment proceeding serves or disserves the country. Second, the case for impeaching Trump turns not on whether he attempted (vigorously but unsuccessfully) to obstruct Mueller, but on establishing that across an array of subjects, he represents an ongoing threat to the constitutional order.
Mystal: I don’t see why we keep acting that the lesson of Clinton is applicable to this situation. Like, smacking Mike Tyson with a wet noodle probably isn’t going to work out for you. Hitting Tyson with a tire iron might work better. We can’t just say, “Oh, it didn’t work when it was tried over sexy time, so it probably won’t work when the president has engaged in a massive scheme to defraud the public and obstruct justice.”
Newell: It’s a political decision, and a big one, so politics should come into play. I’m just noticing a tension that’s going to raise questions about why they’re not pursuing impeachment. It’s going to be an issue with much of the party if Democrats collect all of this evidence and no action is taken beyond, say, a resolution condemning the president.
Mystal: And, not for nothing, but I think when you talk to voters of color, or voters who have had more personal or familial experience with the law “coming for you,” you find that the arguments against impeaching Trump are even more crazy-making. Most Americans do not enjoy the privilege of being accused of crimes but not being prosecuted because it’s “too much trouble” for the system to come after them.
Stern: One argument for impeachment is that a trial would allow Democrats to carefully, and publicly, go through all the damning evidence in Mueller’s report. I find that hard to disagree with—the report is so dense and lengthy, I fear a lot of its new, incriminating details just went over most people’s heads.
Lili Loofbourow: That’s an interesting point, Mark—it’d force the country into a kind of textual scholarship that’s unlikely to happen otherwise.
Stern: Precisely. Think about how many details of Clinton’s malfeasance we are still fluent in today precisely because the impeachment proceedings laid them bare in a cogent and public fashion.
Mystal: I cede that white guys in Wisconsin just want Democrats to talk about who took their jerbs. But there are a lot of other voters whom Democrats also need who find it weak and craven for the Democrats not to pursue accountability of this president to the ends of the Earth.
Loofbourow: I totally agree that the politics of inertia aren’t … especially inspiring. Even if they feel safer for a lot of Dems.
Ben Mathis-Lilley: I continue to believe that someone could make a compelling case to the white Wisconsin jerbs demo that it’s not great for them to have a president whose main occupation is obstructing justice so his corrupt friends and children can do favors for foreign billionaires, but I admit I don’t have any data on that.
Bowman: The problem is that I doubt our view of the seriousness of all this is shared, or ever will be, by a solid majority of the electorate. I have very strong views about the integrity of the justice system and the president’s obligation to see that the laws are faithfully executed. But that’s ephemeral elite trivia to most people. The electorate, outside of committed Democrats, is most likely to see two things—exoneration on collusion and a no-call on obstruction. Even if they bother to understand the evidence, the conclusion is likely to be that it all amounts to “Trump being Trump,” with no actual harm done.
Unless Democrats can convince the electorate that something really bad happened here, going with impeachment risks reinforcing the impression that Democrats are just pursuing Trump in default of real policy ideas. And that presents a serious electoral risk in 2020, where the imperative is to get Trump out of office. Don’t get me wrong—Trump has committed impeachable acts, repeatedly. But whether it makes electoral sense for Democrats to impeach is a whole different question.
Mystal: I think A) if Democrats can’t explain why having a criminal president is “bad,” then that’s their failure, and B) I think Democrats can walk and chew gum. I think they can say, “Look, here are some programs and policies and solutions that will help your family, ALSO we’re trying to get this lawless lunatic out of office because no one is above the law.” B might be a little pie-in-the-sky, but can’t we try? We should expect Democrats to at least try.
Bowman: Once you start this train rolling down the tracks, how do you stop it? This is the dilemma Ken Starr created for the Republicans on Clinton. He dumped his salacious report on their doorstep with a recommendation for impeachment. They were stuck, even though common sense surely told them that they were walking into a political trap. The case against Trump is far stronger factually, but the polarization of the electorate is also far greater, meaning that impartial judgment by members of the president’s party is proportionately less likely.
Stern: I think there is also a psychological component here, among both Democratic leaders and the base, that leans against impeachment. It’s such an extraordinary remedy, as Frank said, and yet a lot of Americans are tired of these extraordinary times and want, well, a return to normalcy. Defeating Trump at the ballot box is perfectly normal and perhaps equally desirable if your aim is to get him and his enablers out of office. An impeachment trial, by contrast, would be a political circus, and, in the best-case scenario for liberals, would lead to President Pence. Lili, I was wondering if you have thoughts about impeachment as perhaps an overreaction, a misguided way to fight fire with fire.
Loofbourow: Right, the psychology of all this—and by that I guess I mean, recognizing what “normalcy” means right now, not just within the world of politics but for folks in the country who aren’t political animals and are sick of everyone—seems central. I don’t know that anyone (including the Conventional Wisdom) understands how the American electorate actually feels about this, or how much Barr’s double effort to get in front of the story succeeded in muddling the takeaway. I think Frank is right to suspect that plenty of Americans don’t see this as especially serious, or hand-wave it away as Trump being a scamp. In other words, I tended to agree with folks who argued (before yesterday) that impeachment was imprudent. There wasn’t enough evidence, that argument went, and doing so would come across as political score settling rather than fighting for the present and future health of the nation.
Stern: Barr’s goal, aside from spinning the report as favorable to the president, seemed to be to calm raging political fires. “Nothing to see here, folks.”
Loofbourow: Right. It’s also undeniably the case that the Dem sweep happened when Democrats were focused on the things that actually matter to people in their everyday lives: not Russia, not obstruction. Health care.
Dems obviously need to keep making that their main argument. One thing that’s interesting to me is that there are signs that a faction of the Dems would do this either way—after all, the people pushing hardest for impeachment now after the report are those who have been pushing hardest for health care and climate change solutions. AOC reluctantly wants to impeach, but she also wants to fix the stuff that’s broken. Whereas Steny Hoyer … well, let’s just say his performance on both fronts is a little more static. I understand why Dems think that’s safer. From a pragmatic point of view, they might be right.
Mystal: Plenty of Americans think drug use is no big deal too. And yet millions are incarcerated for the offense. If the law doesn’t matter here, to this man, then it’s just B.S. to apply the law to anybody else. Not the hopper on the street. Not the next president who decides to commit some crimes.
Loofbourow: Right. Plus, now that we know as much as we do—and there’s still plenty we don’t!—it’s feeling to me like failing to impeach isn’t an option. At least, if the goal is to spare what little integrity and functionality American institutions have left. What is impeachment for (and who cares if it doesn’t result in removal—it’s an end unto itself) if not this?
Because here’s the thing: What we know now is that if anything saved this president from obstruction charges, it was that his orders to obstruct weren’t obeyed. The president asking people to do “crazy shit” (in Don McGahn’s immortal words), and these people disobeying, isn’t the system working as intended. It can’t be, because the executive just has way too much power. Individual disobedience from underlings who retain a modicum of conscience—or simple common sense—can’t be America’s safeguard from executive malfeasance. Right? The office of the president is bigger than Trump, and the military does not have the option of disobeying their commander in chief.
Mike Pesca: I think there are three groups of people in this country. People who hate Trump no matter what, people who love Trump no matter what, and the people who will decide this election. I think impeachment GREATLY appeals to the first group, might even slightly appeal to the second group, and is a BIG turnoff to the third group. Make your political calculations thusly.
Stern: And Democrats feel they can count on the first group to vote for them in 2020 no matter what. So, if they have to alienate one group, they’d prefer to alienate the hardcore Trump haters. Right?
Loofbourow: Yeah. I mean, the flip side, to my mind, is this: Maybe constraining the executive on principle isn’t the goal. Maybe trying to safeguard what’s left of the normal American system just isn’t a priority at this point, because it’s assuming a future that’s not quite in evidence. Like, acting as good custodians of the executive branch could cost the Dems hugely in the 2020 election, and maybe climate change is a bigger priority than constitutional checks and balances. I guess what’s shifted, to me, is that impeachment used to feel like the cheap and facile position. Post-report, not impeaching feels like that.
Mathis-Lilley: It is definitely not the majority belief among voters that Trump is an honest guy with integrity. That may not mean impeachment would be a winning strategy, but they’d be making a case that majorities already believe, in some senses.
Mystal: I think there are two groups: people who hate Trump, and people who are wrong. And you need every single one of the Trump haters to turn out to vote, which is not what happened in 2016. People think that those people are just going to show up no matter what. But I think 2018 proved that those people need to be actually inspired by a party that promises to do something about the problem.
Bowman: Let me argue against myself a bit. I have been saying for most of the last two years that an excessive focus on the Mueller investigation is a mistake, even if, indeed particularly if, one wants to see him removed by impeachment. The big question—the only question—in presidential impeachment is whether the president is personally unfit for office or, by his conduct, represents a threat to the constitutional order. Trump is both, but the proof lies not in the Mueller report, but in the public record of his conduct and (perhaps) in further investigation of his financial misdeeds and/or fiscal ties to Russia. The House should be vigorously pursuing the whole spectrum. If the result is a comprehensive case for impeachment, good. Go for it. If not, meaning that sound political judgment suggests that impeachment is foredoomed, then use the investigative results to expose Trump’s flaws in advance of 2020.
Mystal: I agree with you there 100 percent, Frank. I think it’s always been a mistake and continues to be a mistake to focus the entire impeachment argument on the Mueller report.
Jeremy Stahl: I would just say that some of the proof lies in the Mueller report … it was, like, a 500-page report! With footnotes.
Pesca: It was 448, and a third was footnotes, and another third redactions. You don’t get hazard pay for reading it, Jeremy.
Bowman: But, Lili, what do you really know today that you didn’t know last week? The stunning thing about the Mueller report really is how much of it was already well known. To me, at least, the factual case is not much better or worse than it was 48 hours ago.
Loofbourow: Frank—couldn’t agree more. But I do absolutely believe that people are more inclined to trust the report than they are to trust (or even remember) individual stories as reported by the press—which haven’t been packaged together into one giant (semi-coherent) document.
Mystal: I think “checking Trump” was a prominent 2018 campaign issue overall. But the winning candidates (and some of the near-winners) did a fantastic job of telling voters that the way to check Trump was to do all these other cool things like “let people vote” and “maybe try to save the planet somehow.”
Stern: Most Americans probably do not want the opposition party to impeach a president because they don’t like his policies, or his personality. I think the Mueller report has long presented a deus ex machina out of this conundrum: Congressional Democrats need not seize on some particularly stupid or evil but likely legal presidential action to justify impeachment; they can point to actual criminality to illustrate that impeachment is an extreme and final resort to deal with a criminal president.
That’s one reason why Democrats are up in arms about Trump’s alleged infringement of the Constitution’s emoluments clauses. If they can pinpoint a genuine constitutional violation, they’ll be on more solid ground when it comes to removing the president from office.
It isn’t “Trump did stuff we don’t like,” but rather “Trump did stuff that’s illegal and so he has to go.”
Pesca: Back to “how to get rid of a president”—”at the polls” has always been the best opportunity for the biggest break with the past. There are such things as realigning elections; there has never been a realigning impeachment.
Stern: Maybe because there have been so few impeachments, Mike! We are working with minimal data here!
Pesca: But there’s never even been a realigning assassination, or a realigning death in office. Only elections realign.
Mystal: Trump every freaking day normalizes unhinged and lawless behavior as the way to “get ahead” in the United States. He normalizes playing grab-ass with any woman you meet as acceptable executive behavior. He normalizes using the bully pulpit to advance racism and bigotry and white supremacy. We’ve got way bigger problems than normalizing impeachment.
Can I actually also just push back on the “normalcy” narrative? There are entire swaths of Americans for whom normalcy never worked. I think it’s wrong to assume that almost everybody wants normalcy. A lot of people want better than that.
Loofbourow: Yep. AOC is popular for a reason (on the left).
Mystal: Impeaching Trump is maybe an abnormal response to the entirely normal bigotry and sexism that he represents.
Loofbourow: By the same token, it may feel more “normal” at this point in history to outsource Congress’ duties to the public by making the people vote out a president their representatives would rather not do anything about.
Mystal: Right, Lili. It actually is the most normal thing in the world right now for Congress to abdicate its constitutional responsibilities, to either the executive or the courts or the people.
Stern: Last question: Can everyone please provide a prediction speculating what happens next vis-à-vis the Mueller report and impeachment?
Here’s mine: The House fails to impeach but instead passes some toothless resolution condemning Trump.
Bowman: Not a clue. Too many variables.
Stahl: Hearings are held that bring the full scale of Mueller’s report into dramatic public light, and Democrats have virtually no choice but to go forward with an impeachment that they don’t actually want and that may or may not be politically calamitous (though I lean toward not calamitous).
Newell: I also believe that the House fails to impeach but instead passes some toothless resolution condemning Trump. But we’ve got a long way of subpoenas, documents, hearings, more subpoenas, and on and on, until we get there. Democrats are in part continuing to request additional transparency after yesterday’s release because they don’t want to make decisions.
Mystal: Democrats try to get Mueller to say, “The president should be impeached, you sodden cowards.” He doesn’t. Democratic leadership throws up its hands and says, “Welp, we’ve done everything we can do. Let’s tell aggrieved white people we’ll bring them unicorns.” No impeachment. Biden gets wrecked by Trump in the general. I die.
Pesca: Nancy Pelosi does not move on it; the Dems continue investigating taxes and emoluments; the election overtakes the news cycle, 55 percent chance that Trump loses and all right-thinking Americans say, “Good thing you didn’t waste our time with a doomed impeachment.” Forty-five percent chance Trump wins and Elie screenshots the above prediction and emails it to me three times a day.
Stern: Everyone seems incredibly skeptical that Democrats will actually vote to impeach, which was a huge talking point when they gained control of the House! This is interesting!
Pesca: That talk assumed Mueller would recommend … something.
Newell: It will be interesting to see, by the way, if some renegade Dem does introduce an impeachment resolution and forces a vote, as they’d be allowed to do. It could make for an interesting whip operation for Democratic leaders.
Pesca: But wait—what if the redactions include the pee tape?!?! Game-changer.
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