OPED: Importance of Mueller probe in post-impeachment era

Chris Gagin
Defending Democracy Together
President Donald Trump speaks during a signing ceremony for criminal justice reform legislation in the Oval Office of the White House, Friday, Dec. 21, 2018, in Washington. (AP Photo/Evan Vucci)

With the threat of Senate conviction virtually non-existent, does the president really need to fear impeachment? Article I, Section 4 of the U.S. Constitution provides the criteria for impeachment: “Treason, Bribery, or other high Crimes and Misdemeanors.” But, given the tribal state of our politics, while the House might impeach, political reality holds the Senate will never convict.

This was the lesson of President Clinton’s impeachment. It's a lesson now applicable to President Trump should he ultimately suffer the same ignominious fate at the hands of the new Democratic House majority.

Only the final Mueller report has the gravitas to change public opinion enough to convince the Senate to convict following House impeachment.

Otherwise, following a Senate acquittal, the political spectacle of impeachment thereafter becomes but a political straw-man for the president to simply stand up and knock down as a means to recapture the post-impeachment political momentum.

This, of course, is why congressional Democrats are eager to slow the march toward impeachment with 2020 looming.

In short, upon President Clinton’s Senate acquittal, the U.S. entered a de-facto post-impeachment era.

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The post-impeachment era is one in which the rule of political expediency lays waste to more refined Rule of Law precepts. It’s one where bedrock American maxims, such as "no person is above the law" and "equal justice under the law," become viewed as mere obstacles, easily overcome, in the name of political power.

With impeachment seen as a political coup d’etat, the practical effect is that only an election can legitimately remove a sitting president in modern America.

Today’s political reality fundamentally alters the Madisonian balance of power between the president and Congress. With Congress politically unable to carry out its constitutional duty to remove a president so deserving, a far stronger chief executive emerges, and the power dynamic between the "co-equal" branches becomes decidedly unbalanced.

This is why the details of the Mueller investigation matter so much to the long-term health of our constitutional republic. Viewed as the criminal investigation its indictments and convictions properly identify it as, the Mueller investigation is now central to the restoration of the intended balance of constitutional power between the president and Congress.

This is true regardless of whether a sitting president can be indicted while in office. That fight, and the impeachment process itself, both go to the issue of holding a president accountable for wrongdoing. But, the former goes to individual accountability for personal criminal conduct, whether prior to or during a president’s term, while the latter encompasses the larger issue of constitutional issue of checks and balances.

Amazingly, Mueller’s investigation is not alone. There are also several concurrent investigations, the most notable of which is the one within the Southern District of New York. That investigation has already infamously labeled the president as “Individual-1” in its prosecution of former Trump lawyer and fixer, Michael Cohen. Logic holds that were “Individual-1” not president, his own indictment on (at least) two counts of campaign finance felonies would be imminent, if not already filed.

Yet, it is Mueller’s investigation that matters most, even with the president’s own Justice Department pursuing him in New York. While felony violations of campaign finance reform are certainly serious, Mueller’s investigation goes to the core of our constitutional democracy.

It is now widely known and reported that at least 14 Trump associates interacted with the Russians during the campaign and transition. Mueller’s ability to link and detail the conspiratorial narrative for these (and quite likely other) contacts between the Trump campaign, transition and administration is key to overcoming Republican resolve within Congress to reflexively oppose impeachment on political grounds — should impeachment becomes a constitutional necessity.

Even with the attention paid to the Cohen sentencing, it is arguably only Mueller’s investigation that holds the power to recalibrate public opinion. It is Mueller’s stoic defense of American sovereignty and election integrity that has the power to move the hearts and minds of average Americans. It is Mueller’s investigation that the public knows and readily understands, and perhaps most importantly, it is Mueller whom the president has openly, and at times savagely, attacked as merely conducting a “witch hunt.”

That Mueller can deliver the evidence and provide the corresponding narrative grows more certain by the day. The question is whether that evidence will be enough to end this post-impeachment era?

— Chris Gagin is a licensed attorney and director of Defending Democracy Together.