Speaker Nancy Pelosi is proceeding wisely

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 impeachment drums are growing louder but at least one Californian has remained steadfast against taking that fateful step.

She is House Speaker, Nancy Pelosi, who even after rising calls to begin the process coming from at least 53 House Democrats—nearly one third of her delegation—she has continued to urge patience.

“Nothing is off the table,” she said, “but we do want to make a compelling case, an iron-clad case.”

How much leeway the voters are willing to give her and the Congress before taking formal measures to initiate impeachment proceedings remains to be seen.

If the polls are accurate, Pelosi is still in step with public opinion, but resistance to the impeachment demands could be wearing thin.

Ironically, the president has practically invited Congress to begin such proceedings or has put on a very good act seeming to encourage it on the apparent assumption that doing so would help to ensure his reelection.

In fact Trump appeared ready to issue himself a free pass thinking himself fully exonerated.

That was before Special Prosecutor, Robert Mueller, put a wrench into things announcing that, notwithstanding Trump’s repeated assertion that the Russian inquiry has all been a big “witch hunt”, he could not conclude after two years of exhaustive investigation that Trump was cleared of obstructing justice.

Adding more fuel to the impeachment fire, Mueller with  somewhat astonishing candor declared, “If we had confidence that the president clearly did not commit a crime, we would have said so.”

Yet, though there were sufficient findings to indict Trump as the legally understated 448-page report goes to some efforts to lay out, Mueller felt obliged to follow Justice Department policy which he sees as having precluded him from making such a recommendation.

And while there has never been a constitutional ruling, the general view is that a sitting president cannot be indicted.

Which raises the question, why conduct an elaborate investigation into the potential commitment of serious crimes when in the end such findings are impermissible for the purposes of bringing indictments.

If the Justice Department is not the ultimate safeguard of our laws, then what is its purpose?

Muddying the waters further, Attorney General William Barr, the nation’s chief law enforcement officer, deliberately undercut Mueller’s careful statement suggesting that he could have made a recommendation to do so if he felt it justified.

If Barr actually shared that view with Mueller he took those legs out from under his subordinate within hours after the report was released in the now infamous 4-page letter to Congress that summarized Barr’s conclusion that the president as far as he was concerned had been vindicated.

Barr’s outright duplicity and contradictory statements in contrast to Mueller’s deliberate cautiousness has not been lost on anyone and members of congress can fall back on his words as ample grounds alone for instituting impeachment proceedings:

Barr did much to hurt his boss’s cause and choosing to make Trump his client rather than the justice system, he did him no favors and it did not prevent Mueller from having the final word.

“The Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing,” said Mueller, in an unmistakable inference to impeachment as being the appropriate tool.

Mueller has been playing by the book. Barr has been playing to the president. Speaker Pelosi must now decide how she thinks Congress should play it and the stakes could not be higher.

Pelosi is both an astute student of history and a veteran of two modern-day episodes involving impeachment—the first against a Republican, Richard Nixon, who avoided it by resigning first, and the second, against the Democrat, William Clinton, who was impeached and still reelected.

Democrats increased their majority control in the Senate to 60 in the November 1974 election making Nixon’s impeachment all but certain when the GOP’s nominal leader, Sen. Barry Goldwater of Arizona, and several other influential colleagues prevailed on him to quit.

Clinton, charged in 1998 on the first article of impeachment, obstruction of justice, by the House Judiciary Committee 27-11 in 1998  (with 7 Republicans joining) was acquitted of that and all other charges in the Senate which had 55 Republicans.

Also two other impeachment articles against Clinton for perjury and abuse of power failed in the House.

Now, just as then, a two-thirds Senate majority—67 votes—is required to impeach.  

Pelosi, ever a supreme pragmatist which has contributed to her success, has little confidence of securing the votes ultimately needed amongst the Senators who show little appetite for impeachment.

Before a supportive California Commonwealth Club audience in San Francisco a few days ago Pelosi cautioned, “we want to do what is right and what gets results,” emphasis on the last phrase.

Several other Californians including House Committee Chairs, Maxine Waters (Financial Services) and Adam Schiff (Intelligence) are following her lead but are under mounting pressure to ramp up action.

Pelosi will have to make the determination on whether and when to release the brakes. It will be one of the most consequential decisions of her career.

Clinton’s troubles stemmed initially from sexual harassment charges against a young intern about which he lied.

Nixon’s undoing entailed a far more heinous set of crimes involving a conspiracy that went well beyond matters of personal misbehavior.

The case against Trump which it would now be up to Congress to prosecute raises questions of a far graver nature including not least of all allegations of well documented covert intervention in our election process by a foreign power in collusion with top Administration officials if not with the knowledge of the president himself.

In this regard, Mueller’s final words carry special weight and have ominous meaning:

“And I will close by reiterating the central allegation of our indictments, that there were systematic efforts to interfere in our election. And that allegation deserves the attention of every American.”

We will continue to debate whether Trump’s unrelenting attacks on the FBI, the Office of the Special Prosecutor, the Justice Department, the Judiciary, the Congress, members of his Cabinet, the press and the numerous groups and institutions he dislikes constitutes a growing endangerment to the nation.

We may have to await future history for the answers.

Meanwhile, congress certainly has a mandate and indeed a constitutional duty to counteract the blatant over-stepping of boundaries and the egregious violation of laws by members of the executive branch and by any president.

Pelosi’s forbearance is admirable, and the wise course is to build as  strong a case against Trump as is necessary whatever the time required until it is taken possession by a majority of the voters.

Even more urgently, what we cannot and must not be willing to tolerate are threats to our democracy and our electoral process by other governments intent on doing us harm.

Heeding Mueller’s warning is not a partisan issue. Both houses of congress should already be actively engaged working with the best technical expertise available to protect us from further mischief in the November 2020 election—which Trump denies.

Here’s a common sense way of perhaps defusing some of the mounting public anxiety over meddling by the Russians or others in our election machinery which should have wide appeal.

Speaker Pelosi and Minority Leader, Kevin McCarthy (Bakersfield) along with Senate leaders, Charles Schumer and Mitch McConnell, might want to consider formation of a special bipartisan panel to attack this problem.

That might draw an interesting tweet or two from the president. It would also put to the test his loyalty to the Constitution.

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