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It’s not about collusion; it’s about obstruction … and impeachment

by Andrew C. McCarthy, opinion contributor - 03/06/19 11:00 AM ET

“There was no collusion!”

As President Trump demonstrated in his feature-length CPAC speech, he is that rare combination of bottomless energy, canny comic timing, disregard for norms, and obsessive-compulsive disorder. The last manifests itself in manic refutation of the Democrat-media narrative that the Trump campaign was in a traitorous conspiracy with the Kremlin. At this point, if you ask the president what time it is, or to pass the salt shaker, he’ll tell you, “There was no collusion!”

{mosads}Mr. Trump has always said this, even as evidence of non-criminal but indecorous Trump-Russia contacts mounted (the Trump Tower New York meeting with Kremlin-operative Natalia Veselnitiskaya, the Trump Tower Moscow project, former Trump campaign chairman Paul Manafort’s ties to Russian and Ukrainian oligarchs). Plainly, though, “no collusion” has become a mantra now because the president expects that special counsel Robert Mueller’s reputedly imminent report will conclude that there was no criminal collusion — no Trump-Russia espionage conspiracy to steal the 2016 election.

The White House is attempting to shape expectations: Even if the special counsel’s report catalogues unsavory conduct and connections, it will be portrayed as exoneration if there was no “collusion” in the sense of criminal collaboration.

Not so fast.

I believe the so-called Russia-gate probe ultimately will be shown to have begun early in 2016. It may not have been formally opened on paper as “Crossfire Hurricane” until months later — until late July or early August. The murkiness is intentional. There is queasiness on the part of intelligence agencies, both because they were scrutinizing the incumbent administration’s political opponents in the midst of a contentious presidential campaign, and because they were aided and abetted by at least one foreign intelligence service — something that should not have happened; something the revelation of which could damage an information-sharing arrangement critical to national security.

But for however long investigators have been at it, and certainly since Mueller’s investigation came into full swing after May 2017, it has been obvious that there was no criminal conspiracy.

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Yet, bear in mind: It was not collusion that triggered Mueller’s appointment. While collusion was the rationale for the overarching Russia investigation, we got a special counsel because of obstruction allegations. Mueller was brought on board eight days after the president fired FBI Director James Comey. In the interim, Comey leaked a memo claiming Trump had leaned on the bureau to drop any investigation of Michael Flynn, the president’s fired national security adviser.

These incidents were said to be proof that the president was subverting the Russia probe — i.e., the old Washington story that “the cover-up was worse than the crime”; that point when the obstruction aspect of an investigation overtakes whatever purported misconduct initially propelled the investigation.

This has not been a collusion investigation for a long time, not primarily. That is not news. Fifteen months ago, in a National Review column entitled “It Is Now an Obstruction Investigation,” I tried to explain that Mueller was convinced there was no criminal collusion — if there were, he’d have had his accomplice witnesses plead guilty to espionage conspiracy, not to comparatively minor crimes of undermining the investigative process (e.g., lying to FBI agents). The prosecutors instead were focused on proving obstruction.

And, given the nature of Mueller’s evidence, I contended that the probe’s emphasis on obstruction meant it was necessarily an impeachment investigation.

{mossecondads}That is, when it comes to Trump, the episodes prosecutors have been investigating as obstruction do not involve criminal actions — such as tampering with witnesses, as was done in the Nixon and Clinton impeachment cases. Instead, they involve a president lawfully exercising his constitutional prerogatives, but driven by what prosecutors portray as improper motives. That would be a very controversial theory of obstruction. As William Barr opined in a memorandum written before he became attorney general, a president should not be indicted over conduct in a gray area — it should be only over misconduct that is clearly criminal and serious.

Impeachment, however, is saliently different from indictment. Unlike a prosecutor, Congress does not need a penal offense to take action; impeachment is a political process (i.e., the stripping of the president’s political authority by the other political branch). It can be driven by misconduct that Congress concludes is an abuse of power, even if it does not constitute an offense of the criminal code.

I do not expect collusion to be the highlight of Mueller’s report. Collusion was just the rationale for conducting an investigation for which there was no criminal predicate. I expect Mueller to file a report that highlights obstructive conduct, though probably not one that calls for an obstruction indictment. That, as I said back in December 2017, would throw the ball into Congress’s court for consideration of impeachment.

And now, lo and behold, with Mueller apparently about to issue his report, the Democratic-controlled House Judiciary Committee suddenly has issued a flurry of subpoenas and document demands. Chairman Jerrold Nadler (D., N.Y.) says his committee is launching an investigation of obstruction, with an eye toward using the special counsel’s handiwork as the foundation for an impeachment inquiry.

You don’t say.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor.