Impeachment? Not so fast without missing element of criminal intent

The release of the report by special counsel Robert Mueller has unleashed a furious debate within the Democratic Party over the need to commence impeachment proceedings against President Trump. Mueller was anything but subtle in his pointed discussion of how Congress can deal with the “corrupt exercise of the powers of office” within “our constitutional system of checks and balances and the principle that no person is above the law.”

In writing those words, Mueller put Democrats in Congress in a more uncomfortable position than he did Trump. Indeed, Trump seems quite satisfied with defining victory as avoiding indictment. Democratic leaders want to appear eager to impeach without actually impeaching Trump. Mueller, however, triggered impeachment frenzy but left out a key element necessary to achieve it. That element is criminal intent.

A study by the conservative group Media Research Center found that impeachment was referenced on ABC, CBS, NBC, CNN, and MSNBC more than 300 times in the first 18 hours after the report was released, with CNN alone accounting for 148 times. Many Democratic members of Congress ran on impeachment during the 2018 midterm elections.

{mosads}As soon as they won the House, however, Democratic leaders such as Speaker Nancy Pelosi announced that impeachment was not on the agenda. That was viewed by some as a bait-and-switch. When House Majority Leader Steny Hoyer referred to impeachment as “not worthwhile,” the resulting backlash forced him to backtrack. Others, such as Senator Elizabeth Warren, have called to open impeachment proceedings.

Such demands suffer from the same loose analysis that characterized the last two years of predictions of inevitable criminal charges against Trump. The problem is that some positive findings for Trump in the Mueller report would weigh heavily in an impeachment defense. Mueller has effectively cleared Trump and his 2016 campaign of collusion. While the report states that Russians clearly worked to elect Trump and that the Trump campaign viewed the release of hacked Democratic material by the Russians as beneficial, the investigation “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” Indeed, no American was indicted in the special counsel investigation for collusion, coordination or conspiracy.

The report also undermined the theory surrounding the firing of FBI Director James Comey. That act, leading to the appointment of the special counsel, showed Trump in a distinctly bad light as blundering and blind to how it harmed his administration. However, Mueller found considerable evidence that Trump was motivated by his anger over the sheer refusal of Comey to state publicly what he was saying privately, which is that Trump was not a target of any investigation. Trump was dead wrong in his action, but Mueller detailed how the president felt Comey left his administration “under a cloud” by not telling the public what he was telling Congress.

Notably, Mueller also defused the “bombshell” story of the Trump Tower meeting. He confirmed that the meeting lasted only 20 minutes and was set up under the false promise of supplying evidence of criminal conduct by Hillary Clinton and her campaign. Trump’s son-in-law and White House adviser, Jared Kushner, left the meeting quickly after calling it a waste of time. The promoter who set up the meeting called it a “dumb” idea of a Russian client who had ruined his relationship with the Trump family.

The evidence indicates that Trump knew little or nothing about the meeting in advance. Mueller also described how Trump drafted his infamous statement about it with little knowledge of what occurred. Donald Trump Jr. said the meeting was primarily about adoptions and actually expressed concern that the statement should be qualified so as not to create a false impression that it was entirely about adoptions. Mueller painted the president as more clueless than conniving here.

Impeachment would have to focus on alleged obstruction, since Mueller did not find evidence of collusion. It is certainly true that you can obstruct an investigation that did not find a crime, but it is a difficult case to make. Despite Trump impressively counterpunching himself into an obstruction charge, the report does not establish a compelling criminal case for it. Indeed, Mueller explaining why he failed to come to a conclusion on it is one of the most unsupported and unconvincing parts of his report. The reason for that failure, however, could be as important as the element.

Some have tried to supply a rationale as a precursor to impeachment. Some have suggested Mueller was prevented from finding criminal conduct because of the Justice Department policy against indicting a sitting president. Yet that policy did not prevent Mueller from coming to a decision on collusion. Furthermore, Attorney General William Barr and Deputy Attorney General Rod Rosenstein did reach a conclusion, so there was no barrier from the Justice Department. Mueller also never said he was told he could not reach a conclusion. He indicates the very opposite.

There also is speculation that Mueller failed to reach a conclusion because he did not agree with the narrower view of obstruction held by Barr. Such a disagreement on the elements of the crime was not the reason. Mueller articulated his standard and applied it. Despite identifying 10 troubling episodes that could be defined as acts of obstruction, he could not say with confidence that Trump acted with the requisite “corrupt intent.”

{mossecondads}Mueller found evidence of a “range of other possible personal motives animating” how Trump conducted himself, from anger over questioning the legitimacy of his electoral victory to how certain acts by him or his family could be viewed. Mueller concluded, while not determinative, “absence of such evidence bears upon” the intent of Trump “with respect to obstruction.” That is why the difference on the elements of obstruction ultimately was not the issue. It came down to corrupt intent.

The report is a mess on intent with an array of intents to choose from. Mueller found “substantial evidence” that Trump wanted to limit the scope of the investigation, but that is not necessarily intent. Importantly, Mueller described noncriminal motives for the baffling conduct of Trump. Usually, the absence of evidence of a corrupt intent is resolved in favor of the defendant; however, the special counsel may not have been so inclined after Trump refused to be interviewed on obstruction. If Mueller reached the same conclusion as on collusion, it would have rewarded Trump for his intransigence. There may be an element of comeuppance in declaring that, in the end, it was impossible to determine what Trump was thinking.

None of this produces a compelling case of prosecution, even when any noncriminal motivation or intent is acknowledged. Even the best grounds for obstructive intent with Trump seeking to fire Mueller, an order ignored by White House counsel, was justified by Trump as based on his fear of a conflict of interest. Since Mueller was not fired, we cannot know if Trump would have tried to block any new special counsel. But Trump ultimately did not stop the investigation. He could also claim, in his defense, that he simply wanted a neutral investigator, not someone who was interviewed to replace Comey and then appointed to investigate the firing of Comey.

Congress clearly has a legitimate interest to hold hearings on some of these issues. With Trump now calling some of the findings “fabricated” and “total bullshit,” he has again opened the door to further inquiry. Yet the inability of the special counsel to resolve the question of intent should weigh heavily on any decision of the Democratic leadership to move from investigation to impeachment. Like indictable acts, impeachable acts demand a showing of intent, not simply an array of possible intents.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified on the Bill Clinton impeachment standard, represented former attorneys general in that litigation, and served as lead defense counsel in the last Senate impeachment trial.