The Constitution gives Congress pretty wide latitude in deciding what justifies impeachment. Two offenses are mentioned — treason and bribery — but a third, “high crimes and misdemeanors,” has never been clearly defined although it’s evident the framers didn’t want lawmakers to impeach a sitting president, vice president or other officer of government for no good reason. Obstruction of justice would seem to fit the definition of eligible offenses (at least it’s been used before), and thus with the release of special counsel Robert Mueller’s report last week, and especially its allegations of possible obstruction, Democrats now find themselves in a quandary: To impeach or not to impeach?
House Speaker Nancy Pelosi says no — at least for now. Her position boils down to this: the House needs to keep investigating. There’s some truth to that. Members need the chance to hear all the relevant evidence, to look beyond the redacted report and sift through the underlying interviews, memos and other details. No prosecutor would seek an indictment without doing so, and make no mistake, that’s the function the House of Representatives is called on to perform. It is the U.S. Senate that conducts what amounts to a trial to decide whether to remove a president from office (something that has never happened). The House’s role is more akin to deciding whether to bring an indictment.
But it’s alarming to hear a second justification for not impeaching Mr. Trump that seems to have great resonance with Democratic loyalists. And it is this: Remember what happened when House Republicans impeached President Bill Clinton over perjury and obstruction of justice charges stemming from the Monica Lewinsky scandal in 1998? Not only did it fail in the Senate, but it mustered greater sympathy for President Clinton who today is treated not as a political pariah but as a party elder statesman. The worry is that President Donald Trump would be similarly buoyed on his way to reelection by the impeachment process and the way in which it overwhelms Congress. One can imagine how Trump voters (and perhaps others) would react: Why is Washington still talking about the 2016 election and not doing something about problems related to health care, Social Security, immigration and so on? And then, once the process is complete, a Senate controlled by Republicans is almost 100 percent certain not to produce the two-thirds majority needed to convict anyway.
"They can bring all of these people up, but as soon as you open an impeachment and the president isn't removed, the president will go on rally after rally, saying that Congress found me innocent," Joe Lockhart, Mr. Clinton’s former press secretary, recently observed on CNN.
Tactically, that point of view makes sense. Constitutionally, however, it’s 100 percent wrong. Congress can’t treat the impeachment process like it was about gaining political advantage in the next election and beyond. Just as they should not prosecute because it serves their self-interest, they should not fail to prosecute because it serves their political needs. The Constitution doesn’t call upon Congress to topple the presidents when the timing suits them, it calls on them to remove them for committing high crimes and misdemeanors — potentially including obstruction of justice.
One more point. As Democrats on the Hill wrangle with the White House over who can testify or what documents can be released to committees, they may be sacrificing some of their legal authority by labeling it as “oversight” and not part of an impeachment proceeding. That’s worrisome, particularly if Mr. Trump is going to take every request — even one as simple as having a former White House counsel talk to Congress about issues he’s already discussed with the special counsel’s office — into a matter for the Supreme Court. The Constitution calls on the House to answer to a higher authority — the best interests of the American people — when it comes to judging President Trump’s actions. To that end, the consequences to their own political careers must be ignored.
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