Thanks to Mueller, Democratic Leadership Has a Clear Path to the One Thing It Doesn’t Want

Did anyone say impeachment?

Jerry Nadler at a podium.
House Judiciary Committee Chairman Jerry Nadler has a tightrope to walk. Zach Gibson/Getty Images

Robert Mueller’s report, which details 10 potential instances of obstruction of justice by Donald Trump, is unsurprisingly meatier than Attorney General William Barr let on in his initial summary. As my colleague Mark Joseph Stern writes, it can even be read as an impeachment referral to Congress. House Democrats certainly welcomed it as such.

“The Special Counsel made clear that he did not exonerate the President,” House Judiciary Committee Chairman Jerry Nadler said in a Thursday statement. “The responsibility now falls to Congress to hold the President accountable for his actions.” House Majority Leader Steny Hoyer, similarly, said in a statement that “the Special Counsel concludes that Congress must make a determination regarding obstruction of justice, unable to make such a determination himself.”

But then later, speaking on CNN, Hoyer appeared to put impeachment—Congress’ constitutional remedy for “high crimes and misdemeanors”—off the table.

“Based on what we have seen to date, going forward on impeachment is not worthwhile at this point,” he said. “Very frankly, there is an election in 18 months, and the American people will make a judgment.” Adam Schiff, chair of the House Intelligence Committee, echoed a similar point to the network: “A failed impeachment is not in the national interest.”

It’s a bit awkward: We’ll hold the president accountable but not in the way you’re thinking. Democrats may be welcoming the investigative responsibility they believe that Mueller, handcuffed by internal Justice Department policy forbidding the indictment of a sitting president, left in their laps. But even should they find strong bases for presidential obstruction, Democratic leaders are still loath to say they would initiate the formal response that would seem to naturally follow. House Democrats could—hell, are even likely to—find themselves following Mueller’s roadmap to the very end, but stopping just before the finish line out of a sense of political impracticality. It’s not a comfortable position to be in.

As Barr reemphasized in his Thursday morning press conference, he and his deputy, Rod Rosenstein, responded to Mueller’s punt on obstruction by taking it upon themselves to determine Trump had not committed such a crime.

The redacted release, however, makes clear that Mueller’s team had operated from the position that it would not make a “traditional prosecutorial decision.” Meaning even from the get-go the team decided “not to apply an approach that could potentially result in a judgment that the President committed crimes,” even without an indictment, because “no charges can be brought.” The investigation’s stated goal, instead, was to “preserve the evidence,” and a “federal criminal accusation” could “potentially preempt constitutional processes for addressing presidential misconduct”—a constitutional process like, oh, let’s say, impeachment.

Mueller also outlines several instances—asking White House counsel Don McGahn to lie, floating pardons and whispering other sweet nothings to witnesses—in which there’s a reasonable inference that the president obstructed justice, while very carefully not saying any such thing.

Now what if the House Judiciary Committee takes those reasonable inferences of obstruction and certifies them as proper instances of such? What would the repercussions be then?

When asked about impeachment at a Thursday afternoon press conference, Nadler said, “That’s one possibility.” He added that “there are others,” though didn’t expand much further.

That may be because once you look a couple of steps above Nadler’s pay grade, you find that impeachment isn’t much of a possibility. It’s not just Hoyer. Consider one of Speaker Nancy Pelosi’s clearly defined criteria for pursuing impeachment: Republican buy-in. “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan,” she told the Washington Post in March, “I don’t think we should go down that path, because it divides the country. And he’s just not worth it.”

Republicans have unsurprisingly yet to see anything “compelling and overwhelming” enough to persuade them that they should toss their leader out of office. “Democrats want to keep searching for imaginary evidence that supports their claims, but it is simply not there,” House Minority Leader Kevin McCarthy tweeted Thursday. “IT IS TIME TO MOVE ON.” Georgia Rep. Doug Collins, ranking member of the Judiciary Committee, stated that “Democrats’ accusations of criminal obstruction are unfounded.”

“I look forward to examining the mountain of factions supporting the principal conclusions the attorney general and deputy attorney general shared last month: no collusion, no obstruction,” Collins added.

With Republicans making the shocking decision to stand by their president in the face of a not-very-friendly report, Democrats find themselves careening toward an impossible spot.

The Mueller report will give them solid grounds for making the case that Trump obstructed justice, a presidential misdeed for which there is constitutional remedy. But a remedy that the hapless pursuit of which would completely distract from election-cycle contrasts that swing voters care much more about, like protections for preexisting medical conditions. House Democratic leaders want Trump to carry the stench of well-documented impeachable offenses into election season, without actually having to do the impeachment. It’s not the biggest needle to thread.