Democrats in Washington found themselves Friday confronting an unwelcome surprise conclusion following the release of the final report by special counsel Robert Mueller: Maybe we should impeach President Trump after all.
Ever since taking back the House of Representatives in January, Democratic leaders have carefully modulated the demands for impeachment from their activist base. First, they stressed the need to wait for the outcome of Mueller’s probe into Russian interference in the 2016 election. Last month, House speaker Nancy Pelosi splashed cold water on the idea of impeachment, telling The Washington Post’s Joe Heim, “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.”
The idea that Democrats would focus on defeating Trump at the ballot box in 2020 had become accepted conventional wisdom in recent weeks, particularly after attorney general Bill Barr’s late March summary of Mueller’s conclusions seemed to indicate that Mueller’s findings had resulted in what Trump himself declared on Twitter as “Total EXONERATION!”
As Mueller sees it, Congress has a unique role in sorting through questions of presidential malfeasance.
Yet as the hours passed Thursday, and Washington digested the 448 pages submitted by Mueller’s Special Counsel Office, a sense of surprise and almost dread descended on Democratic leaders: Mueller appeared to have delivered a report that was all but an explicit impeachment referral, examining in lurid and compelling detail at least 10 specific instances where it appeared President Trump had sought to obstruct the special counsel’s Russia investigation, through a mix of official actions, private badgering of witnesses, and public statements.
Moreover, contrary to what Barr had repeatedly suggested—including just an hour before the report’s public release—the report makes clear that Mueller’s refusal to make a “traditional prosecutorial decision” was explicitly guided by the fact that he believed the Justice Department could not indict the president while in office. Barr had seemed to indicate that Mueller had failed to find obstruction.
The report clearly says the opposite. Mueller found plenty of Trump actions that could be considered obstruction but felt that it was not his role to prosecute them. “If we had confidence after a thorough investigation of the facts that the president did not obstruct justice, we would so state,” Mueller’s report says. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
The presidential obstruction was clear in its objective and utilized, corruptly, the office’s own powers. If anything, Trump was stymied only by associates who refused to go along. “Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations,” Mueller wrote. “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”
That means, ultimately, the question remains unsettled. And as Mueller sees it, Congress has a unique role in sorting through questions of presidential malfeasance.
Pressure for Congress to act mounted almost by the hour.
That combo—a more damning report than expected and an explicit mention of Congress’s role—reawakened questions of impeachment in ways not seen since a momentary kerfuffle early in the year, when a BuzzFeed report seemed to indicate Mueller would present evidence that Trump had “directed” his former lawyer Michael Cohen to lie to Congress. (The Special Counsel’s Office ended up issuing an unprecedented statement refuting that reporting, though later testimony by Cohen himself on Capitol Hill made clear the matter hinged on more subtle interpretations of Trump’s conduct. As Cohen said, “At the same time I was actively negotiating in Russia for him, he would look me in the eye and tell me there’s no business in Russia and then go out and lie to the American people by saying the same thing. In his way, he was telling me to lie.” BuzzFeed, buoyed by some of Mueller’s own reporting Thursday, issued an update last night following the report’s release.)
The second-highest ranking Democrat in the House, Steny Hoyer, was first out of the gate Thursday to bat down any resurgence of impeachment proceedings: “Based on what we have seen to date, going forward on impeachment is not worthwhile at this point,” Hoyer told CNN. “Very frankly, there is an election in 18 months, and the American people will make a judgement.”
Yet pressure for Congress to act mounted almost by the hour. “If this isn't obstruction of justice—what is,” said legal scholar Jeffrey Toobin. Former federal prosecutor Mimi Rocah wrote, “I read Mueller’s decision on obstruction to be that there was a lot of evidence of obstruction and evidence of criminal intent (which Mueller indicated in his explanation for why he didn’t pursue the interview with Trump), and that the final decision should go to Congress.”
The Washington Post's editorial board declared the report “the opposite of an exoneration.” Writer Yoni Applebaum at The Atlantic, which has called for the president’s impeachment even before Mueller’s report, laid out clearly how Mueller intended to refer the matter to Congress. “Mueller got us this far,” wrote John Podesta, the Clinton campaign chair in 2016, whose emails Russia hacked and leaked prior to the election. “Now it’s Congress’s turn to weigh the evidence against the president, decide what merits a response and act in the best interests of our democracy.”
Impeachment ultimately is a two-step process: First, the House would hold impeachment hearings, to decide on whether there’s sufficient evidence for so-called “articles of impeachment.” If, after public hearings, those articles are voted out of the House, it would then fall to the Republican-controlled Senate to hold a trial, presided over by chief justice John Roberts. Two-thirds of the Senate would have to vote to convict the president for Trump to be removed.
House Judiciary chair Jerrold Nadler, whose committee would officially begin impeachment proceedings, began Friday by subpoenaing the full Mueller report. Even if successful, it’s unlikely to dramatically change the public’s understanding of Trump and Russia’s behavior. The report, particularly the second volume dealing with the question of obstruction, was lightly redacted, and many of the redactions appear related to ongoing criminal investigations that don’t target the president personally. Congressional Democrats also called on Mueller to testify personally on the Hill, setting a deadline of late May for the special counsel to appear and answer his own questions about the report and findings.
The members of Nadler’s committee, meanwhile, who had used “Let’s wait until Mueller is done” as political cover for months, were left stumbling, insisting that even though Mueller was done—and his findings damning—they still needed more time. “A systematic effort to obstruct justice would clearly be an impeachable offense. The Republicans impeached Bill Clinton for obstructing justice over one lie,” committee member Jamie Raskin told Politico. “But I don’t think we’re there yet. We are still in the assembling-of-facts phase.”
The political calculus around Trump and the Mueller report was complicated by two other figures instantly caught up in the report’s revelations: attorney general Barr, who seemed to carefully mislead the country about Mueller’s findings, and Richard Burr, the chair of the Senate Intelligence Committee, who according to a footnote in Mueller’s report had apparently funneled information from confidential FBI briefings to his committee back to the White House about who was being targeted by the probe.
If true, such activity would be a deep, fundamental abuse of the traditional classified “Gang of 8” briefings on Capitol Hill, whereby the intelligence community and FBI share their most sensitive information with congressional leaders.
Both men, Burr and Barr, are likely to face hard questions ahead too. And regardless of the answers, Congressional Democrats have an even harder choice to make.
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Garrett M. Graff (@vermontgmg) is a contributing editor for WIRED and coauthor of Dawn of the Code War: America's Battle Against Russia, China, and the Rising Global Cyber Threat. He can be reached at firstname.lastname@example.org.