There’s Still Time to Save America from Autocracy

Whether or not to impeach might seem like a ‘lose-lose’ premise but Congress can unify around the rule of law.
by Kim Wehle
April 23, 2019
Featured Image
Nancy Pelosi (D-CA), Chuck Schumer (D-NY), Mitch McConnell (R-KY) Kevin McCarthy (R-CA). (Photo by Ron Sachs-Pool/Getty Images)

We’re all becoming tired of hearing this refrain: “We live in an era of tribal politics, where people are dug in to their ‘side,’ regardless of the facts, the law, the ethics, and the merits.” Sadly, it’s true that, too often, political conversations occur exclusively in black and white these days, when the reality of life is almost always gray.

Last week was no exception. Is President Trump completely innocent and exonerated of Russian “collusion” and obstruction of justice by virtue of Special Counsel Robert Mueller’s massive report? Or did Mueller uncover enough evidence for a jury to find proof of a crime beyond a reasonable doubt that could put Trump in jail?

Complete innocence versus jail?

With democracy hanging on by a thread, this is the wrong question to ask. The question to ask is: What can be done to save America from an institutional imperial presidency?

Aware of this conundrum, House Speaker Nancy Pelosi is walking a fine line between evading impeachment proceedings without ruling them out altogether. Either she goes forward on impeachment, potentially strengthening Trump’s hand in the 2020 election (because people have come to sneer at impeachment as a purely political grenade), or she says “no” to impeachment and cements a constitutional structure that puts the presidency above the law.

Let’s lay out this “lose-lose” choice in more detail, because it’s what’s effectively before the American people right now (not just Pelosi).

First, nobody denies that a hostile foreign power attacked our electoral process in the 2016 presidential election, and that Vladimir Putin has scant good will for the American way of life. That much is set in stone.

Second, we know that the Trump campaign welcomed those overtures. Despite Trump lawyer Rudy Giuliani’s cynical claim to the contrary, there are plenty of presidential nominees who would have rejected Putin outright and rung the FBI. (Think John McCain, for starters).

Third, we also know that once Trump learned that the Mueller team was investigating him, he went on the attack, directing his then-White House counsel to fire the guy who was leading the probe itself. He did this—and a bunch of other things—to stop the investigation of him. That kind of behavior can easily amount to a crime under the obstruction laws. No measure of tinkering around the edges of “intent” can evade these basic facts.

Fourth, Mueller made clear in his report that an indictment of a sitting president was not going to happen on his watch so long as Department of Justice policy forbade it.

In order to connect these dots, let’s do a quick thought experiment. Suppose that, in addition to the evidence of obstruction of justice laid out in his actual report, Mueller found evidence that Trump had paid off his former campaign manager, Paul Manafort, to buy his silence. Suppose hypothetically that Mueller found a check written from Trump’s personal account to Manafort for $1 million, along with a handwritten note from Trump that stated, “This big fact check is to keep your big fat mouth shut. You better not talk to Mueller about my conspiracy with Russia to defraud the United States.”

Of course, Trump would never be so foolish as to write such a note, even if these fake facts were real. But given his known monetary payoff to adult film star Stormy Daniels in violation of federal campaign finance laws—along with the 100-plus untoward contacts between team Trump and the Russians during and after the election—this hypothetical is not completely beyond the pale these days.

Imagine a situation in which there is inescapably “slam dunk” evidence of obstruction, i.e., there is no question of intent to obstruct and there is no question of an underlying conspiracy (which isn’t required under the law, but Attorney General Barr created confusion on this score in his summary of the Mueller report).

What would happen then?

Well, Mueller still would decline to indict, because DoJ policy governed his work as special counsel, and he’s a rule-of-law-kinda guy.

Barr wouldn’t change the policy (although he could) so as to enable him to indict Trump. We can presume this from his apparent belief that the attorney general works for Trump-the-man, not the institution of the presidency (a belief that is flawed as a matter of constitutional theory, but nonetheless where things stand).

Under these hypothetical circumstances, the only mechanism for holding the president accountable would be impeachment. Unless an impeachment process begins, the president becomes—full stop—above the law. He’s a king. He is untouchable, at least until the next presidential election.

We can push this thought experiment further, and substitute “Hillary Clinton” for “Donald Trump.” Imagine that Hillary commits crimes in office, but her DoJ won’t prosecute because of a DoJ memo written during a time when her husband was under investigation by the Office of Independent Counsel Kenneth Starr. Clinton’s DoJ concluded that Bill Clinton could not be prosecuted. Hillary Clinton’s hand-picked attorney general won’t defy that precedent, for whatever reason, so Hillary Clinton’s crimes go unabated.

If impeachment doesn’t happen at this point, we might as well get our black Sharpie pen and cross out the impeachment clause from the Constitution. It becomes a nullity. Irrelevant. It cannot operate anymore because it’s been ignored to the point of obsolescence.

If we stick with the Trump example and add that Debbie Democrat becomes president in 2020, she can rest on the laurels of history and commit crimes while in office willy-nilly, knowing that she can’t be indicted and that impeachment is pretty much a joke.

Some might argue that we have crossed that bridge already—that the impeachment and acquittal in the Senate of Bill Clinton rendered the impeachment clause nothing but a blunt political tool that warrants only a collective shrug.

But so far, Trump doesn’t appear to agree. He is tweeting mightily that “high crimes and misdemeanors” didn’t happen here (something that only Congress—not Trump—can determine, pursuant to a standard that happens to be lower than proof beyond a reasonable doubt).

Thus, there’s still a chance to save American democracy from structurally degenerating into an autocracy. That constitutional “life vest” would require Republicans in the Senate–all of them– to unify around the rule of law. Such collective support for the rule of law is the only way Republicans in Congress could save themselves from individual electoral defeat, which might otherwise flow from having outraged Trump’s base. Essentially, Congress would have to take a page from the workers’ union playbook by seeking fairness en masse. There is safety in numbers, my friends.

This is not to say that Republicans should vote to impeach. But Congress must do something. Here’s one alternative: Start a bipartisan investigative process that ends in new legislation that tolls criminal statutes of limitations for sitting presidents. And at the very least, censure Trump and heavily sanction Russia.

As Martin Luther King Jr., famously said, “the arc of the moral universe is long, but it bends toward justice.” As a people, we are going in the opposite direction right now. It will take collective acts of heroism to preserve for our grandchildren the kind of accountable government—and thus the protection of individuals’ liberties—that the founders of this country fought and died for.

No more kings. Please.

Kim Wehle

Kim Wehle is a contributor to the Bulwark, a professor at the University of Baltimore School of Law, a former assistant U.S. attorney, a former associate independent counsel in the Whitewater investigation, a CBS News legal analyst, and a contributor to the BBC. Her book, How to Read the Constitution and—Why, will be published in June. Follow her on Twitter @kim_wehle.