Impeachment Maybe Off the Table

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

The long-awaited report by Special Prosecutor, Robert S. Mueller, III arrived amidst high expectations that it would produce information which would immediately kindle discussion of possible impeachment.

That did not happen.

Instead it appears to have landed with more of a dull thud and much of the air may be quickly going out of the impeachment balloon!

Indeed the sound of jubilation at 1600 Pennsylvania Avenue could probably be heard all the way at the Capitol and only became louder with release Sunday of a summary by Attorney General William Barr which Trump immediately declared “total exoneration.”

It says that neither Trump nor any of his aides “conspired or coordinated with the Russian government’s interference in the 2016 presidential election.”

A four-page press release with a minimum of facts following the most exhaustive examination of any president in U.S. history concluding there was no obstruction of justice does not constitute a blanket exoneration.

House GOP Minority Leader, Kevin McCarthy, flatly declared, “this case is closed.”

       However, it has left many questions unanswered about the president’s conduct which might compel Democrats to overplay their hand in search of a smoking gun that, barring some startling new revelations may not exist.

Well before its delivery House Speaker, Nancy Pelosi, had labeled talk of impeachment “a waste of time,” adding that only “bipartisan action” can bring that about.

Her admonition may have been both prescient and politically wise, and Democrats could choose to avoid it at their peril.

House Intelligence Committee Chair, Adam Schiff (D-Burbank), reinforcing Pelosi’s warning in light of Mueller’s findings questions “whether the president or those around him were compromised by a foreign power.”

This was at the crux of the report the full contents of which remain unknown and is now in Congressional hands. The early indications are that while cries for impeachment are at best premature, there will be immense pressure to release the entire report.

It was the president’s firing of James Comey, the former FBI Director, who wanted to expand the Russian probe that triggered Muller’s appointment and the ensuing inquiry which Trump has insisted all along was a “witch hunt.”

This has so far led to criminal charges against 34 people including six high up former Trump associates and key advisors, a number of whom are now on their way to jail for lying under oath about numerous  criminal activities related to Russian involvement.

Harking back to the Watergate investigation many decades ago which brought down Richard Nixon, the central question posed by the GOP Minority Leader, Howard Baker, was, “What did the president know and when did he know it?”

That question is likely to be reprised by Congressional committees in the days ahead.

However, Mueller was apparently satisfied that, notwithstanding a mountain of testimony which says otherwise, there was insufficient evidence to show collusion with Russian agents and apparently none that directly implicates the president in possible conspiracy.

There is no conclusion as to whether Trump committed obstruction of justice —–also an impeachable crime—and that will be left to Congress to sort out as was done during the impeachment proceedings against both Bill Clinton and Richard Nixon.

Interestingly, Mueller concludes by saying that “I will leave it to Acting Attorney General, Robert Rosenstein, and Attorney General William Barr to determine if there was an obstruction of justice.”

Even more troubling, before his confirmation Barr questioned “whether the Special Counsel’s report should be released to the public.”

What is particularly interesting is a very ambiguous phrase in Barr’s cover letter to Congress providing notice that the investigation had ended.

He refers to action that may have been “so inappropriate or unwarranted under established (Justice) Departmental practices” that it was concluded “it should not be pursued.”

That phrase could provide an opening which Congress is likely to seize upon.

Barr himself wrote “there were difficult issues of law and facts” and refers to “actions some of which were not the subject of public reporting,” inferring that there is much more we may never know.

Mueller’s failure to state conclusively that Trump did not obstruct justice preferring to leave that decision to the Attorney General is being accused of punting the ball.

What Mueller chose not to investigate could be equally important and if the goal is full transparency, this may not be the best procedure.

But the burden of proving so will now shift to the congressional arena where a question of whether the Special Prosecutor exercised maximum objectivity will have to be weighed against the obligation of Congress to demand full disclosure for which the House voted unanimously.

 However, with no other indictments forthcoming after two years of exhaustive investigation and interrogation of 500 witnesses and 2800 subpoenas, cries for impeachment could wane even while many Democrats will remain eager to exact retribution.

It is dead certain that many in Congress– will take a dim view of any efforts to conceal whatever is of substance within the Mueller report, and this could lead to a protracted battle between the two branches of government.

The risk that the public may become weary of the entire business even arousing sympathy for the beleaguered president is very real though many will believe he must not be issued a free pass if Congress fails to do its duty.

This is very much on Speaker Pelosi’s mind as she meets with leadership to formulate a strategy that might avert a second term for Trump.

Pelosi is adamant in demanding that any Congressional briefing must not be classified which would leave members free to discuss in public all they are told.

From the very beginning of this ugly episode we have been travelling down a number of parallel paths which have yet to intersect and have different goals.

Mueller was extremely careful not to stray from the specific charge given him which was to look at collusion with the Russians—and nothing more.

This is the legal path which expanded exponentially with other inquiries by the U.S. Attorneys offices in the Southern District of New York and in Virginia that continue with others The being spun off by Mueller to various divisions in the Justice Department as he shuts down his office.

Pelosi, Schiff and those in the realist camp favor a political path which permits further investigation without alienating voters.

A CNN poll just released finds support for impeachment among Democrats declining from 80 percent to 68 percent with national support falling from 43 percent to 36 percent.

Realizing there are not enough votes in the Senate for impeachment,  Schiff declared, it is not worth “putting the country through a racking impeachment if it’s not going to be a success.”

“Absent some new revelation in Mueller’s report, impeaching Trump should be off the table.”

Fair warning to the burgenoning field of Democratic presidential hopefuls who might want to take note of the fact that the 40 new members in their party elected to Congress in 2016 ran on bread-and-butter issues and healthcare reform.

       Few minds will change because of the Mueller report. But how the fallout is handled could determine who will be the next occupant in the White House.

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