Impeaching Trump would play into Putin’s hands

For all of the posturing, the seven hours of leading questions and high-pitched legislative arias that filled the air during special counsel Robert Mueller’s congressional testimony, there is only one issue that mattered with respect to impeachment: Did anything President Trump do to frustrate Mueller’s investigation prevent the special counsel from finding the facts with respect to Russia’s interference? 

If the facts set forth in part one of the Mueller Report are incomplete because the president  successfully thwarted the fact-finding effort, he should be impeached and removed from office.  The reason is that, as Mueller stated and his report demonstrates, Russian interference in our political system is a dire ongoing act of political aggression. It is an existential constitutional threat. If the president successfully prevented the special counsel from getting to the truth behind Russian interference, he served Vladimir Putin’s strategic agenda of discrediting our form of government by dividing us against ourselves. Such aid and comfort to our adversary would render him unworthy of his office and require him to forfeit it. 

Short of that, however, impeachment should not be pursued based on obstruction.

The obstruction statute, it is true, doesn’t distinguish between attempts to obstruct and actual obstruction — but Congress should. Let’s assume for the sake of argument that the president is indictable for obstruction of justice. Part Two of the Mueller Report identifies 10 instances in which the president took actions that arguably met the elements of obstruction; in the most widely cited example, the president ordered his counsel to get the special counsel fired and, when he refused to do so, instructed him to deny the president had given the order. That conduct may be indictable as obstruction, but Congress should not, in deliberating impeachment, ignore the following fact: Actual obstruction, which would have prevented Mueller from writing the comprehensive account of Russian interference that he did, didn’t happen.   

The comprehensiveness of Part One of the report is the best evidence that the activities outlined in Part Two had no real impact.

Impeachment is at bottom a political act, not a juridical one; it represents the ultimate frustration of our democracy: the attempted removal of a duly elected official not by operation of the ballot but by the action of a coordinate branch of government. At a minimum, such a short-circuiting of our electoral process should require conduct so extreme that it threatens the integrity of our system.

Thus, President Clinton was undeniably guilty of obstruction of justice when he perjured himself and took other steps to frustrate the operation of the civil justice system. But his misconduct did not threaten our constitutional order; his impeachment was a purely partisan act unjustified by the damage his conduct had caused.  

President Nixon, on the other hand, had actively engaged in a cover-up of activities that were intended to undermine the integrity of the electoral process; this conduct was rightly viewed, on a bipartisan basis, to merit impeachment. He resigned in the face of bipartisan consensus as to the severity of his conduct.

President Trump’s conduct, as outlined in Mueller’s report, was execrable; if he didn’t successfully obstruct justice, it wasn’t for lack of effort. If his campaign didn’t conspire with our foreign adversary, it likely was because its assistance wasn’t required. But when asked whether “[A]t any time in the investigation, was your investigation curtailed or stopped or hindered?”  Mueller’s answer was a simple “No.”

In these circumstances, without more, Congress must weigh the damage done to our institutions by the president’s unsuccessful attempts to thwart the Mueller investigation of Russian interference against the damage to our institutions should it pursue the removal of a sitting president by a mechanism other than defeating him in the 2020 election.

The prudent course is not to pursue impeachment based on the acts of obstruction outlined in the Mueller Report. Such a purely partisan impeachment proceeding would becloud the 2020 presidential election and deliver to Vladimir Putin his ultimate strategic victory: a polarized and paralyzed America. “The liberal idea has started eating itself,” he gloated recently. That is unquestionably the Russian aim in teasing the extremes in every domestic debate, in exploiting our freedom of expression to spread disinformation, in supporting a campaign that welcomed assistance from a country bent on dividing and destroying us. There would be no better example of the liberal idea consuming itself than a purely partisan movement toward impeachment. 

The only effective counter to Putin’s nihilism is to recover a sense of governing consensus, of the worthiness of compromise, of the imperative of restraint, of the wisdom of seeking common ground. That cultural recovery must be engaged in by all of us. But it should be led in this instance by Congress.      

John Farmer Jr. is University Professor at Rutgers Law School and a faculty associate of the Eagleton Institute of Politics. He chaired the 2011 New Jersey Congressional Redistricting Commission and was counsel to the chair of the New Jersey 2011 Legislative Reapportionment Commission. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.