Does the Mueller Report Contain the Evidence for the Impeachment of Donald Trump?

The report of Special Counsel Robert Mueller has been completed, but not released publicly.  All we have is a letter from Attorney General William Barr stating that Mr. Mueller concluded the evidence he had accumulated of Donald Trump and members of his administration possibly conspiring with Russians to interfere in the 2016 elections was insufficient to justify criminal charges.  Barr's letter also said that Mueller could not decide whether President Trump or others had obstructed justice but that Barr had concluded they had not.

A storm of controversy has arisen over the fact that the report itself is not public and therefore neither Congress nor the public can evaluate Mueller's evidence for themselves.  Whether or not the report will be released in full remains to be seen.  But the delay in releasing the report leaves open the question whether the report contains enough evidence to warrant the impeachment of President Trump.

Criminal charges need to be proved beyond any reasonable doubt.  That is the standard ("burden of proof" is the legal term) that Mr. Mueller would have been working with when he, according to Barr, decided that criminal charges for conspiracy with Russians could not be proven.  That would have also been the standard Mr. Barr worked with when he decided that obstruction of justice charges were not warranted.  But the Constitution does not specify any particular burden of proof for impeachment.

The impeachment process contains two stages.  The first is impeachment--or, the leveling of charges--by the House of Representatives.  The House decides whether there is enough evidence to level charges against the President.  Grand juries in America can level charges (by issuing an indictment) when they believe there is probable cause to believe that the defendant committed a crime.  Probable cause is a much lower standard than beyond a reasonable doubt.  Based on what's already been publicized about possible Trump collusion with Russia, it seems quite possible that the Mueller report contains enough evidence to support a determination of probable cause.  So impeachment by the House could be a distinct possibility if the House chose to use the probable cause standard (and nothing in the Constitution prevents it from doing so).

The second stage of the impeachment process is a trial in the Senate.  The Constitution provides, in Section 4 of Article II that "The President, Vice President and all civil Officers of the United States, shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanors."  One might argue that the word "Conviction" implies the reasonable doubt standard.  However, the reasonable doubt standard had only begun to find its way into English law in the 1780's, when the Constitution was written, and was not explicitly recognized by the U.S. Supreme Court until 1881 (see Miles v. U.S., 103 U.S. 304 (1881).  Thus, the Senate is not bound by the reasonable doubt standard, and could impeach President Trump because it believes that grounds for impeachment have been proven by, for example, a preponderance of the evidence or by clear and convincing evidence, both of which are lower burdens of proof used in different types of civil court cases.

It's been reported in the press that the Mueller report is lengthy and detailed.  Thus, it surely must contain a great deal of evidence.  Because of the possibility that the Mueller Report may contain enough evidence to support the impeachment and removal from office of President Trump, it is imperative for America's democracy that the full report be immediately released to Congress and the public.

The Defining Moment of Donald Trump's Presidency

Special Prosecutor Robert Mueller's report may be finalized as early as next week, according to a news story (see https://www.cnn.com/2019/02/20/politics/special-counsel-conclusion-announcement/index.html).  The report presumably will address crucial questions about President Trump.  Did he collude (conspire would be the legal term) with Russian authorities to undermine American democracy?  Was he a Russian intelligence asset, as one former acting FBI director has speculated (see https://www.cnn.com/2019/02/19/politics/andrew-mccabe-trump-law-enforcement/index.html)?  Did he obstruct justice or suborn perjury?  Did he violate federal campaign finance laws?  Did he engage in money laundering?  Did he violate the tax laws?  These and perhaps many other questions could be encompassed by the Mueller Report.  The answers may go a long way to defining President Trump's legacy.

Will the report be released publicly?  The President has said he'll leave that up to newly installed Attorney General William Barr.  Barr has said he wants to be as transparent as possible and will release at least a summary of the report to Congress.  But there is a view in the Justice Department that "derogatory" information about uncharged individuals should usually not be revealed, and Barr may give weight to the this practice.  If Trump is not charged because he is the current sitting President, which is what traditional Justice Department thinking could dictate, then one might wonder whether Barr would engage in legal convolutions to reason that because the President hasn't yet been charged, derogatory information about him shouldn't be released.  Such a contorted line of reasoning would defy the logic of democracy.  If the President is a crook, the people need to know it whether or not the President is charged.  But only time will tell whether Barr is inclined toward something verging on a lawyer's trickery to protect President Trump.

In addition, Barr will have to think through the issue of executive privilege, a doctrine that often shields the President's conversations with other Executive Branch personnel from disclosure.  However, executive privilege is not unlimited, and a President's general interest in confidentiality does not override the needs of the criminal justice process (see United States v. Nixon, 418 U.S. 683 (1974)(a case in which the Supreme Court enforced a subpoena issued by Watergate special prosecutor Leon Jaworski for President Nixon's tape-recordings of conversations in his office).  Moreover, it is a time-honored tradition in American law that discussions concerning a crime or fraud cannot be protected by a legal privilege.  (See Alexander v. United States, 201 U.S. 117 (1906)).  If Mueller's investigation shows that Donald Trump was engaged in criminal conduct, release of that information cannot be blocked by a privilege.

How William Barr handles the question of releasing the Mueller Report will define his legacy.  Although he has had a highly successful career, nothing he has done thus far will compare in significance to his handling of the Mueller Report.  He will be well-remembered, or not, depending on what he does with the report.

If Barr disappoints the curious members of Congress and the public, remember this.  Many, and perhaps most, of the investigations into President Trump and his doings are outside the scope of Mueller's investigation.  The U.S. Attorney's Office in Manhattan is looking into activities of Trump's former personal attorney, Michael Cohen, in relation to various Trump matters and also activities of the Trump Inaugural Committee.  The U.S. Attorney's Office in Washington, D.C. and the main Justice Department in Washington are involved in some of the cases brought by Mueller's staff, and other cases (like the Maria Butina case).  The Attorney General of New York is looking into the Trump Foundation and some of Trump's activities as a landlord.  Trump's continued ownership in the Trump International Hotel in Washington, D.C. is the subject of litigation brought by the Attorney Generals of the District of Columbia and Maryland.  As these cases progress, we will learn more and more about Donald Trump.  Even if we don't learn everything in the Mueller Report, we will eventually learn a heck of a lot about Donald Trump.  And the totality of this growing tidal wave of investigations and litigation will define Trump's legacy.  Facing, as he does, a Democratically controlled House of Representatives, he won't have any more major legislative achievements.  And his erratic wackiness on the international stage make major diplomatic accomplishments highly unlikely.  It's a sad time when a President's legacy is defined by the legal investigations into his activities.  But Donald Trump has done what he has done, and the chickens are coming home to roost.

Donald Trump's Great Weakness

Under pressure from President Trump, Attorney General Jeff Sessions just fired former FBI Deputy Director Andrew McCabe.  On the heels of this announcement, Trump's attorney, John Dowd, called on the Justice Department's Deputy Attorney General, Rod Rosenstein, to close Special Counsel Robert Mueller's investigation into Donald Trump's potential collusion with Russia during and after the 2016 Presidential campaign.  (See https://www.cnn.com/2018/03/17/politics/john-dowd-mueller-russia-investigation/index.html.)  This seemingly heavy-handed announcement could be read to imply that if Rosenstein doesn't close the investigation, he'll be fired. 

But so what?  What if Trump fires Rosenstein, and later engineers the firing of Mueller?  Rosenstein and Mueller could easily become martyrs in the eyes of large numbers of people, and end up making big money at prestigious law firms.  They might also get lucrative book deals and become featured commentators on network television.  Look at what happened when Trump fired FBI Director James Comey:  Comey got a multi-million dollar book deal and a position teaching law (which probably would give him time to write the book). 

But what would happen to Trump if he fired Rosenstein and Mueller?  He would look like a demagogue trying to undermine the rule of law.  He could easily trigger a constitutional crisis, in which there would be considerable pressure on members of his own party to impeach him.  If the Republicans in Congress failed to impeach Trump, they would look weak and ineffectual--just as they usually appear.  Thus weakened, their ability to deliver further on the Republican agenda would diminish.  Trump and his Republican cohorts in Congress would end up flailing around futilely even more than they do now.

Donald Trump's great weakness is he doesn't understand people like Rosenstein and Mueller.  They proceed on the basis of law, truth, principle and integrity.  These concepts are utterly foreign to Trump, who seems to believe that he can use money to solve any problem he has (although the Stormy Daniels contract doesn't seem to be working out so well).  Trump can't effectively deal with Mueller's investigation because he doesn't even begin to understand the rules--in this case, the rule of law.  He threatens, like a fascist dictator, to fire anyone who gets in his way.  But in a nation of law, as America is, Trump can't win because he doesn't want to comply with the law.   He's like a player in a basketball game who wants to move the ball without dribbling and tackle opposing players without being called for a foul.  That's not the way to win the game, and Trump won't win, either.

Trump Should Be Unhappy that Mueller Is Investigating a Democrat

News services report that Special Counsel Robert Mueller is now investigating Democratic lobbyist Tony Podesta for possible failure to register as a foreign agent.  (See https://www.nbcnews.com/news/us-news/mueller-now-investigating-democratic-lobbyist-tony-podesta-n812776.)  This isn't good news for Donald Trump.

Democrats might be embarrassed or concerned by this new development, because Tony Podesta is the older brother of John Podesta, the manager of Hillary Clinton's recent presidential campaign.  But it's also bad news for President Trump and other Republicans caught up in Mueller's investigation.  By including a Democrat within his purview, Mueller undermines any contention that he is politically biased and demonstrates his neutrality.  That strengthens his credibility, whether he eventually seeks charges against Republicans, Democrats or both.  Republicans feeling any satisfaction from the news of Mueller's investigation of Tony Podesta need to rethink things.