Constitutional experts say that President Donald Trump got a fundamental fact about impeachment wrong in his latest complaint about Special Counsel Robert Mueller’s investigation.
Under the Constitution, the House of Representatives can vote to begin the impeachment process if it believes a president is guilty of misconduct in office, and the Senate then holds a trial to determine whether to remove the president from office.
But in tweets on Wednesday morning, Trump argued that he would “first head to the U.S. Supreme Court” to stop an impeachment drive.
Laurence Tribe, a constitutional law professor at Harvard who has co-authored a book on impeachment, called Trump’s argument “idiocy,” saying the Supreme Court would want nothing to do with a legal challenge like that.
“The court is very good at slapping down attempts to drag things out by bringing it into a dispute where it has no jurisdiction,” he told TIME.
In fact, the framers of the Constitution debated whether presidential impeachments should be handled before the Supreme Court, before deciding that was a bad idea for four main reasons.
First, as Tribe and constitutional lawyer Joshua Matz explained in “To End A Presidency: The Power of Impeachment,” the president appoints members of the Supreme Court, so at least some justices — such as Neil Gorsuch and Brett Kavanaugh, in Trump’s case — would have a conflict of interest.
Presidents are also protected from criminal prosecution while in office, but not after they leave the White House. The framers also worried that a former president might end up fighting criminal charges all the way back to the same Supreme Court that had removed him, creating yet another conflict of interest.
“It would be a conflict of interest for the Court to sit in judgment of the president in an appeal arising from the very conduct that got him impeached if the Court had any role in the impeachment process,” Tribe told TIME.
The third concern was about the court’s size. With so few members — the current court has nine, although it has changed in size over the years — it could be more easily corrupted than larger and more representative groups like the Senate.
Alexander Hamilton made that case directly in the Federalist Paper No. 65, writing “the awful discretion which a court of impeachments must necessarily have” meant it would be dangerous to leave “the trust to a small number of persons.”
And finally, the framers were worried that the court would not have the same “credit and authority” to rule on an inherently political process like impeachment as elected representatives.
Even if the framers’ arguments themselves weren’t enough, the Supreme Court itself has also said in more recent years that impeachment is not part of its duties. Considering a case about a federal judge named Walter Nixon, the Supreme Court ruled in 1993 that disputes over the legitimacy of impeachment were “political questions” to be handled by Congress.
“Supreme Court doctrine on this is well established and crystal clear,” said Richard Pildes, a constitutional law professor at New York University. “The Supreme Court has said that impeachment involves what are fundamentally and pervasively political judgments. For that reason they’re not judgments that courts have an appropriate role to assess.”
He noted another flaw in Trump’s tweets: His argument about the definition of “high crimes and misdemeanors” which the Constitution says can be the basis for impeaching a president.
But, Pildes said, “high crimes and misdemeanors” does not mean only crimes, but also covers a wide range of misconduct.
“Congress can impeach the president for reasons that do not necessarily involve criminal activity,” Pildes said. “For example, if a President is pervasively undermining the national security of the United States, the President may not have committed a crime in doing that, but one could imagine a Congress impeaching a president, and appropriately so, for that.”
Barr, who is set to begin two days of testimony before Congress on Wednesday, has vigorously defended his framing of Mueller’s conclusions amid intense scrutiny over his conduct.
Earlier on Tuesday, Senate Democrats called on the justice department’s watchdog to independently investigate Barr’s handling of the Mueller report and “whether he has demonstrated sufficient impartiality” to continue overseeing 14 criminal matters related to the special counsel’s investigation.
Mueller concluded the two-year investigation into Russian interference in the 2016 presidential election last month and subsequently delivered a final report to Barr. It spanned more than 400 pages.
Barr initially released a letter on 24 March citing Mueller’s conclusion that there was no criminal conspiracy between the Trump campaign and Moscow. Barr declared in the same letter that he did not believe there was sufficient evidence to charge Trump with obstruction of justice.
But a redacted version of Mueller’s report, which was made public on 18 April, revealed nearly a dozen instances in which the actions of the president and his campaign may have amounted to obstruction. The report also stated that the Trump campaign was “receptive” to assistance from Moscow during the 2016 election and expected to benefit from Russian interference.
Barr nonetheless delivered a press conference, prior to his public release of the redacted report, that essentially sought to absolve the president of wrongdoing. In his statement, Barr repeatedly echoed Trump’s claims of “no collusion” with the Russians and downplayed the president’s attempts to impede the special counsel investigation.
House Democrats have issued a subpoena for the full Mueller report and underlying evidence, setting the stage for what is expected to be a protracted legal battle with the justice department and the White House.
Top Democrats in Congress said reports around Mueller’s letter reinforced the need for the attorney general to testify on Capitol Hill.
“No one can place any reliance on what Barr says. We need to hear from Mueller himself,” Adam Schiff, the House intelligence committee chairman, said.
The House judiciary committee chairman Jerrold Nadler said he would press the justice department to schedule a hearing with Mueller “without delay”.
“The Special Counsel’s concerns reflect our own,” Nadler wrote in a statement. “The Attorney General should not have taken it upon himself to describe the Special Counsel’s findings in a light more favorable to the President.”
“It was only a matter of time before the facts caught up to him.”
The Latest: Trump’s ex-lawyer arrives at prison
By The Associated Press May 6, 2019
NEW YORK (AP) — The Latest on Trump’s ex-lawyer and fixer Michael Cohen leaving to start his prison sentence (all times local):
President Donald Trump’s ex-lawyer and fixer has arrived at an upstate New York prison to start a three-year sentence for crimes including campaign finance violations related to hush-money payments made on Trump’s behalf.
A vehicle carrying Michael Cohen arrived at around 11:30 a.m. EDT Monday at the federal prison in Otisville, about 70 miles (113 kilometers) northwest of New York City.
While leaving his Manhattan apartment earlier, he paused briefly and spoke to a media throng. Cohen said he looks forward to the day when he can “share the truth.” Cohen condemned the “xenophobia, injustice and lies at the helm of our country.”
President Donald Trump’s ex-lawyer and fixer has left his Manhattan home before starting a three-year prison sentence for crimes including campaign finance violations related to hush-money payments made on Trump’s behalf.
Michael Cohen was expected to report later Monday at the federal prison in Otisville, about 70 miles (113 kilometers) northwest of New York City.
He paused briefly outside the building and spoke to a media throng, saying he looks forward to the day when he can “share the truth.” Cohen condemned the “xenophobia, injustice and lies at the helm of our country.”
Then he was escorted to a waiting vehicle and driven away.
President Donald Trump ex-lawyer and fixer is due to start a three-year prison sentence Monday for crimes including campaign finance violations related to hush-money payments made on Trump’s behalf.
Michael Cohen is expected to report to the Federal Correctional Institution, Otisville, a prison tucked in the lush countryside 70 miles (113 kilometers) northwest of New York City. A minimum-security prison camp there has become a haven for white-collar criminals including including “Jersey Shore” star Mike “The Situation” Sorrentino and Fyre Festival fraudster Billy McFarland.
Cohen, who’s been disbarred, is trading plaid blazers for khaki prison garb after trying and failing in recent weeks to get his sentence delayed or reduced.
His legal team asked House Democrats last month to intercede after Cohen testified on Capitol Hill, but they were reticent to do so. Cohen’s lawyers said federal prosecutors in New York were also no help.
Special counsel Robert Mueller said Wednesday charging the president of the United States with a crime in his investigation of Russian interference in the 2016 election was not an option his office could consider, given existing Justice Department guidelines that a sitting president cannot be indicted.
In his first public comments since being assigned in May 2017, Mueller said on Wednesday "it would be unfair" to potentially accuse someone of a crime when the person couldn't stand trial to defend himself.
"Charging the president with a crime was … not an option we could consider," said Mueller. "We concluded that we would not reach a determination one way or the other about whether the president committed a crime."
President Donald Trump has claimed the report exonerates him and his campaign team of "collusion."
Mueller's report did not exonerate Trump on obstruction of justice charges.
Mueller seemed to emphasize that point in his appearance on Wednesday.
"If we had had confidence that the president clearly did not commit a crime, we would have said so," he said.
Despite that, Trump said on social media within 30 minutes of the presentation at the Justice Department, that "nothing changes from the Mueller Report."
"There was insufficient evidence and therefore, in our Country, a person is innocent. The case is closed!" said Trump.
House Democrats have tried to arrange, so far without success, for Mueller to testify publicly. Mueller indicated that he was not open to testifying beyond what was said in the report and his statement.
Mueller, 74, told a news conference he was speaking to the report as his time in the Justice Department would come to a close imminently and he would return to private life.
Mueller, who said no one had instructed him whether to or not to testify, did not take questions from reporters.
Mueller, a former FBI director, was given the brief in May 2017 to investigate "any links and/or co-ordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation."
White House press secretary Sarah Sanders said in a statement: "After two years, the special counsel is moving on with his life, and everyone else should do the same."
'Insufficient evidence,' Mueller says
Since Mueller delivered his report in late March, it has been the subject of partisan dispute in Congress and at the White House.
Mueller's report concluded that for the purposes of a successful criminal prosecution, it could not be established that Trump campaign associates conspired with Russian officials to sway the election.
He reiterated Wednesday there was "insufficient evidence to charge a broader conspiracy."
With respect to a controversial June 2016 meeting at Trump Tower in New York attended by Russian individuals promising dirt on Hillary Clinton as well as Paul Manafort, Donald Trump Jr. and Trump son-in-law Jared Kushner, Mueller said "the government would unlikely be able to prove beyond a reasonable doubt that the … meeting participants had general knowledge that their conduct was unlawful."
Attempts by Trump associates to lie about the meeting once it was publicly reported "may reflect an intention to avoid political consequences rather than any prior knowledge of illegality," he wrote.
As well, Mueller said it wasn't clear that the thing of value that was being offered to the Trump campaign rose to the level that made it a contravention of federal election law.
Several Trump associates have been ensnared as a result of the investigation or ancillary probes, including former campaign manager Paul Manafort, Manafort's second-hand Rick Gates, former Trump personal attorney Michael Cohen, and low-level foreign policy advisers Carter Page and George Papadopoulos. They were charged with various offences, with Manafort and Cohen currently in prison.
Flynn report info ordered to be made public
Former Trump national security adviser Michael Flynn, who pleaded guilty to lying to the FBI, is said to have co-operated with the Mueller team. A federal judge has set a Friday deadline for the Justice Department to make public unredacted portions of the Mueller report that pertain to Flynn, plus transcripts of Flynn's calls with former Russian ambassador Sergey Kislyak, and of a voicemail during which someone connected to Trump referenced Flynn's co-operation.
Dozens of Russian individuals and entities were also indicted in Mueller's probe, most related for intrusions of Democratic and Clinton campaign computer systems and for online and social media efforts to sow discord in the U.S. election. The report concluded those efforts largely favoured the Trump campaign over Clinton.
Several portions of the Mueller report were redacted by the Justice Department. A federal judge has set a Friday deadline for the department to make public portions of the Mueller report that pertain to former Trump national security adviser Michael Flynn. (Carolyn Kaster/Associated Press)
"As alleged by the grand jury in an indictment, Russian intelligence officers who are part of the Russian military launched a concerted attack on our political system," he said.
Russian entities, he said, "used sophisticated cyber techniques to hack into and then release that information through fake online identities and through the organization Wikileaks."
"The releases were designed and timed to interfere with our election and to damage a presidential candidate.
Impeachment inquiry calls from Democrats
Democrats in Congress and a lone House Republican, Justin Amash of Michigan, have heavily criticized Trump's attorney general William Barr for a four-page summary he delivered on Mueller's report as well as for the number of redactions in the report.
Mueller, for his part, privately complained to Barr in a letter that the attorney general's summary did not adequately capture the investigation's findings. Barr has called Mueller's letter "snitty."
Many Democrats have slammed Attorney General William Barr, believing he has been acting more in President Donald Trump's interest than that of the nation. (Evan Vucci/Associated Press)
House Speaker Nancy Pelosi has so far resisted efforts by some Democrats who would like to launch proceedings for impeachment of the president. The bar for impeaching a president does not require criminal activity.
A statement by Pelosi on Wednesday afternoon stressed the need for Congress to pass legislation to protect U.S. elections from interference, but steered clear of talk of impeachment.
Jerry Nadler, the Democrat chair of the House's judiciary committee, said that given Mueller's limitations because of the Justice Department guidelines, "it falls to Congress to respond to the crimes, lies and other wrongdoing of President Trump " and we will do so. No one, not even the President of the United States, is above the law."
Presidential candidates Cory Booker, Elizabeth Warren, Seth Moulton and Julian Castro were quick to weigh in, each saying that Congress should begin impeachment proceedings, with Booker calling it a "legal and moral obligation."
Amash said simply, "the ball is in our court, Congress."
While Trump first praised Mueller after Barr's summary was released, the president has more recently returned to a recurring theme, alleging without evidence that the Mueller team was a collection of "angry Democrats," with the origins of the Russia probe characterized by political bias.
Trump last week used words such as "coup" and "treason" in speeches to partisan audiences and gave Barr the authority to investigate the origins of the Russia probe.
Mueller said Wednesday that the same Justice Department guidelines that recommend that a sitting president cannot be indicted explicitly permit "the investigation of a sitting president, because it is important to preserve evidence while memories are fresh and documents available.
"The constitution provides for another process to formally accuse a sitting president of wrongdoing," he said.
Barr, currently travelling, was not present at Mueller's appearance.