Democrats don’t know what to do with the Mueller report. House Speaker Nancy Pelosi (D-Calif.), who talks about a go-slow approach, has all but ruled out impeachment by insisting that it be bipartisan. Liberal firebrands, claiming that it’s their constitutional duty, clamor for impeachment. A handful of House Democrats have suggested a censure resolution but so far censure has received little traction.
Unless Democrats just want to sit on their hands or swing futilely for the fences censure is, in fact, their only viable option. To frame the issue, here’s what the preamble to a censure resolution might look like:
Resolved, the House of Representatives hereby censures and condemns President Donald J. Trump for his conduct in attempting to obstruct, hinder and interfere with law enforcement investigations, including by Special Counsel Robert Mueller, of the sweeping and systemic interference by Russia in the presidential election of 2016. Among other acts of attempted obstruction, hindrance and interference, the president . . .
Article 1, Section 5 of the Constitution grants each chamber the right to punish its members for disorderly behavior but neither authorizes or forbids censure of the president. Nonetheless, a presidential censure resolution would be well grounded in the long-standing congressional practice of passing such resolutions to make a statement on a wide range of topics. Trump could not veto a censure resolution and no court would rule that the House of Representatives cannot express its opinions.
{mosads}Impeachment advocates dismiss censure because it carries no legal consequences. But neither ultimately will impeachment since all that the House can do is vote to put Trump on trial in the Senate, where the Republican majority surely will acquit him without circumscribing his powers. No president has been convicted of impeachment in Senate.
Censure is not a slap on the wrist. Even if it’s largely a symbolic gesture, symbolism matters. The consequences to Trump’s presidential standing and historical reputation from an official act of condemnation by the House of Representatives would be significant. Indeed, he would be only the second president in American history to be unequivocally censured by a chamber of Congress.
Since 1800, according to a study done by the Congressional Research Service, there has been just one clear “instance of a successful presidential censure,” which was a Senate resolution against President Andrew Jackson in 1834. Other censure resolutions never got out of committee and, if they did, their language was so watered down as to leave ambiguous whether, in fact, the president had been censured. The language of the hypothetical censure resolution above is not ambiguous.
Jackson was infuriated by his censure and spent the rest of his presidency attempting to undo it (years later it was removed). An equally infuriated President Trump will no doubt relish the prospect of comparing himself to Jackson, whom Trump openly admires.
But the comparison only gets Trump so far. The Senate censured Jackson because he allegedly removed federal government deposits from the Bank of the United States, without the required congressional approval, and put them in state banks during the so-called Bank War.
{mossecondads}Trump’s misconduct was far more serious. Trump attempted to use the powers of his presidency to interfere with an investigation of Russian attacks on our democracy by his own Department of Justice, according to the Mueller report. If it weren’t for his aides’ refusal to carry out his orders, Trump might have provoked a grave constitutional crisis. If the investigation had been upended, the American public might never have learned that Russian interference in the 2016 election was “sweeping and systemic.”
It’s as unthinkable for the House Democrats to fail to act on the Mueller report as it is for them to embark on a doomed-to-lose impeachment proceeding. If in these extraordinary circumstances House Democrats fail to censure the president, it’s fair to ask just what, exactly, they were elected to do.
Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.