Several weeks ago, President Donald Trump’s impeachment became unavoidable.
Impeaching a president is not synonymous with removing a president from office.
Under the Constitution, impeachment is the first stage of the prescribed procedure by which Congress may remove a president from office. A president is impeached when by a simple majority vote the House of Representatives approves one or more articles of impeachment charging the president with committing what the Constitution calls “high crimes and misdemeanors.”
Once a president has been impeached, he receives a trial in the Senate on the charges contained in the articles of impeachment. The president is removed from office only if, at the conclusion of that trial, the Senate by a two-thirds vote finds him guilty of one or more of the charges.
The Founding Fathers who wrote the Constitution recognized that the role of the House of Representatives in an impeachment proceeding is analogous to that of a grand jury in a criminal proceeding.
One of the principal functions of a grand jury is to approve indictments against criminal defendants. A grand jury indictment is an accusatory legal instrument that formally and officially charges a criminal defendant with committing a crime; after a grand jury approves an indictment, the defendant named therein either goes on trial or pleads guilty.
In order to indict a criminal defendant, a grand jury is not required to have proof beyond a reasonable doubt that the defendant is guilty. The grand jury only needs probable cause—i.e., reasonable grounds—to believe the defendant committed a crime. (Once an indicted defendant goes on trial in a court of law, of course, he cannot be convicted unless his guilt is proven beyond a reasonable doubt.)
Just as a grand jury may indict a criminal defendant if there are reasonable grounds to believe the defendant is guilty of the crime charged, so the House of Representatives may impeach a president if it has reasonable grounds for believing the president is guilty of high crimes and misdemeanors. Proof beyond a reasonable doubt that a president engaged in impeachable conduct is not required. All that is required is the existence of reasonable grounds.
Are there reasonable grounds to believe Trump is guilty of high crimes and misdemeanors?
As used in the Constitution, the phrase high crimes and misdemeanors is a legal term of art whose exact scope is debated. There is, however, no dispute that the felony offense of obstruction of justice is a high crime and misdemeanor.
The Mueller Report, released on Apr. 18, firmly establishes reasonable grounds to believe that on numerous occasions, Trump committed the federal felony crime of obstruction of justice.
To be guilty of this crime, it is not necessary that the offender actually obstruct justice. It is sufficient that he undertakes to obstruct justice. Section 1503(a) of the Federal Criminal Code provides that “[w]hoever corruptly… endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished… [by] imprisonment for not more than 10 years…” Whether Trump succeeded in his repeated efforts to thwart justice is irrelevant to the issue of whether he is guilty. Each time an offender tries to obstruct justice he commits a felony, even though his efforts are unsuccessful.
The two-volume, 400-page Mueller Report is the official account by Special Counsel Robert Mueller’s office of its two-year investigation of Russia’s interference with the 2016 presidential election. The 182 pages of the second volume of the report focus on President Trump’s efforts to impede the FBI’s investigation of Russia’s interference in the 2016 presidential election, as well as his efforts to impede the Special Counsel’s investigation of the Russian interference.
The Report is available online, and millions of Americans have read at least portions of it. The thoroughness and extensiveness of the Special Counsel’s investigation are evident, and the facts uncovered by the investigation are nothing less than shocking. The President of the United States appears to have repeatedly attempted to impede the Special Counsel’s investigation of Russian interference with the 2016 election. President Trump fired the Director of the FBI; he tried to fire the Special Counsel; he tried to arrange for witnesses to testify untruthfully; and he tried in various other ways to hinder the Special Counsel’s search for the truth.
It is apparent from the Report that the only legal reason the Special Counsel has not sought a grand jury indictment of Trump on charges of criminal obstruction of justice is a (legally questionable) 1974 Department of Justice policy memorandum asserting that a sitting president may not be charged with crime.
No fair-minded person familiar with the report will deny that it is devastating to Trump, who appears to be a serial obstructor of justice. Only partisan fanatics with a Trump uber alles mentality will deny that the facts set forth in the report warrant impeachment.
The report does not prove beyond a reasonable doubt that Trump committed violations of the obstruction of justice statute. It does provide reasonable grounds for believing Trump obstructed justice. Which is all that is necessary to impeach a president.
Fox News legal analyst and former judge Andrew Napolitano has read the Mueller Report. “Mueller,” he says, “laid out at least a half-dozen crimes of obstruction committed by Trump.”
Napolitano’s analysis of the Mueller Report is spot-on:
“On obstruction, the report concluded that. notwithstanding numerous obstructive events engaged in by the president personally, the Special Counsel would not charge the president and would leave the resolution of obstruction of justice to Congress [in an impeachment proceeding]…
“[O]bstruction of justice constitutes an impeachable offense under the ‘high crimes and misdemeanors’ rubric…
“Mueller laid out at least a half-dozen crimes of obstruction committed by Trump—from asking former Deputy National Security Adviser K.T. McFarland to write an untruthful letter about the reason for [former National Security Adviser Michael] Flynn's chat with [Russian diplomat Sergey] Kislyak, to asking [political operative] Corey Lewandowski and then-former White House Counsel Don McGahn to fire Mueller and McGahn to lie about it, to firing [FBI Director James] Comey to impede the FBI’s investigations, to dangling a pardon in front of [Trump’s personal lawyer] Michael Cohen to stay silent, to ordering his aides to hide and delete records…
“The president’s job is to enforce federal law. If he had ordered its violation to save innocent life or preserve human freedom, he would have a moral defense. But ordering obstruction to save himself from the consequences of his own behavior is unlawful, defenseless and condemnable.”
Never before in its history has the United States been in this situation.
The Mueller Report transforms the political landscape. Trump’s impeachment is now inescapable. The United States is not a Third World authoritarian regime. There is no room here for presidents who think they can violate the criminal law with impunity. Under the present circumstances, presidential impeachment is mandatory to preserve the rule of law and our democratic form of government. Not impeaching a president who may very well have committed the crimes there is probable cause to believe the current president committed would establish a precedent with unimaginably horrible consequences.
The House of Representatives knows this and most definitely will perform its constitutional duty to impeach President Trump.
There are two possible ways to pursue the now-certain impeachment of Trump.
The first would be for the House of Representatives to vote to impeach relying solely on the facts set out in the Mueller Report. There is recent precedent for this approach. In 1998, the Republican-controlled House of Representatives, after briefly considering the matter, voted to impeach President Bill Clinton, a Democrat, based almost entirely on a report prepared by another special counsel, Ken Starr, and without even bothering to conduct any serious investigation on its own. The vote on impeachment was strictly partisan, with almost every Republican member voting to impeach and almost every Democrat voting against impeachment.
The far better approach is the one used in 1974, when the Judiciary Committee of the Democrat-controlled House of Representatives voted to impeach President Richard Nixon, a Republican, but only after conducting lengthy, televised hearings. Nixon resigned once he realized the entire House would soon vote to impeach him by an overwhelming and nonpartisan majority.
This preferred approach need not be lengthy. A month or two of public hearings at which, building on the Mueller Report, both witness testimony and documentary evidence are produced, would suffice. It is even possible that by then the House of Representatives vote in favor of impeachment would be nonpartisan.
Whatever approach is used, regardless of whether the vote to impeach is partisan, and regardless of whether the Senate votes to remove Trump from office, the president’s impeachment is now as sure as the turning of the Earth.
Donald E. Wilkes, Jr. is a Professor of Law Emeritus at the University of Georgia School Law, where he taught for 40 years. He has published nearly 120 articles in Flagpole.