People are now calling the just-released report by special prosecutor Robert Mueller a “road map” for deciding whether or how to impeach President Donald Trump — that is, an evidence summary that the House Judiciary Committee, where impeachment would begin, can use as a guide. As the committee's chairman, Rep. Jerry Nadler, said on Thursday: Mueller's report seemed to have been written “with the intent of providing Congress a roadmap” to investigate Trump for obstruction of justice.
But the term is actually borrowed from a previous road map, sent to another House Judiciary Committee in 1974 by Watergate special prosecutor Leon Jaworski’s grand jury as a guide to the impeachment of President Richard M. Nixon.
That 1974 road map was indeed used by the House Judiciary Committee to draft articles of impeachment. The committee had the authority to hold the president accountable by impeaching him — but didn’t have the kind of evidence that the grand jury had developed. Accordingly, Jaworski and the grand jury crafted the sparely written “just the facts” road map; and Judge John Sirica authorized its transmission to the committee under seal.
But that was then and this is now. The condition of the road has gravely deteriorated in the intervening years.
Chaotic as the end of Watergate was, the two years of the Trump presidency have left Washington with even less capacity for coherent action.
Chaotic as the end of Watergate was, the two years of the Trump presidency have left Washington with even less capacity for coherent action. So, Mueller’s road map may be less likely to serve as a model for actual articles of impeachment than a big headache for Trump’s opponents. It will be a miracle if they manage to get themselves a strategy, let alone execute it, before the Mueller report is submerged in the 2020 presidential campaign. With today’s warp-speed political calendar, the election is virtually upon us.
Another big problem has also emerged: The Democratic leadership has shown a marked reluctance to impeach the president. House Speaker Nancy Pelosi expressed this sentiment sharply: “He’s just not worth it.” But how can Democrats avoid the imperative to begin impeachment proceedings in light of the seriousness of the misdeeds outlined in the Mueller report?
In 1974, Democrats trying to decide whether to impeach Nixon also faced a difficult timing problem. Nixon’s public support remained substantial until the spring of 1974. If he had lasted until the 1974 midterm elections, and if Republicans had scored gains in those elections, the steam might well have started to seep out of the impeachment effort. It took the smoking gun tape, released August 5, 1974, to break the spine of Nixon’s defense and save the impeachment efforts.
Because things are moving so much faster now, the Democrats, like the Mueller report, must operate in real, constrained time. They will have to decide about every aspect of their effort — what hearings to hold, what witnesses to call, what arguments to use — even as the presidential race revs up.
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They will be forced to do so without any real secrecy and in the face of the millions of Americans who remain Trump loyalists. Meanwhile, Democratic presidential candidates will most surely want their own messages, not the impeachment news, to command the media. That doesn’t even count the fact that Republicans control the Senate, which would have to convict the president by a two-thirds vote.
It may be no accident that the Watergate road map, unlike the Mueller report, remained secret for 45 years after it was created — until the National Archives recently released it under a court order. The report included valuable grand jury testimony, provided with the vigorous assent of the grand jurors themselves.
In contrast, we don’t as yet have grand jury information connected to the Muller report, since Trump’s Attorney General William Barr has redacted all of it and refused to take the needed step of asking the court to release it. True, this situation may change — which is another part of the messiness in working in real time.
Fmr. Watergate Legal Counsel on legal standard for impeachmentApril 19, 201905:29
Meanwhile, Barr appears to have done just about everything he could to create the Trump administration’s very own Mueller report narrative. Just before the report was to be released, Barr held a news conference to explain — as he had already twice before — that Mueller found no collusion, or conspiracy or coordination. The attorney general announced, yet again, that Mueller “did not make a traditional prosecutorial judgment” on obstruction and that Barr had concluded there was none. Trump, Barr said sympathetically, was under unjustified attack. Yet, in Barr’s view, Trump “fully cooperated,” showing “non-corrupt motives” that “weigh heavily against” obstruction charges.
But that’s not what the Mueller report said.
For one thing, Mueller didn’t simply or inexplicably decline to come to a “traditional prosecutorial judgment” — generally described as “put up or shut up.” Instead, Mueller’s decision was clearly based on the Justice Department’s policy that a sitting president can’t be indicted. Next, the report made equally clear that Mueller hadn’t refrained from doing this so that Barr could. Instead, the report looked to Congress as the body with the authority to adjudicate the facts presented.
More than that, the Mueller report described a president who, far from fully cooperating, gave “inadequate” answers to written questions and refused to sit for an interview. It described a president whose efforts to interfere with the investigation were largely unsuccessful only because the people he ordered to interfere tended to ignore him.
It wasn’t easy. In a meeting with Trump, his then-White House Counsel Don McGahn took notes. “Lawyers don’t take notes,” Trump told him. “I never had a lawyer who took notes.” “I’m a real lawyer,” McGahn answered. “I’ve had a lot of great lawyers,” Trump countered. “Like Roy Cohn. He didn’t take notes.”
A man with that idea of lawyering, based on an infamous litigator who was ultimately disbarred, will be hard to educate on the difference between prudent and crazy, let alone right and wrong.
The Mueller report confirms, in spades, what journalism has been saying about Trump and his presidency. The report’s very force, however, creates pressure on Democrats to do something politically dangerous.
There’s never a real road map for that.