Will the Release of the Mueller Report Make Impeachment More Likely?

The occupant of the White House hopes that tomorrow’s Easter-week release of the Mueller report will complete his immaculate resurrection after two years as a target, but the day will more likely be remembered instead as the start of impeachment hearings.

But for who?

The Mueller report may force the House to begin impeachment hearings against Trump for obstruction of justice. It’s being reported tonight that Mueller could not reach a conclusion on this charge because he couldn’t determine Trump’s motive. (Which is, without an explanation from Mueller, infuriating, given that Mueller never even tried to compel Trump to testify.) The motive piece is important for a prosecutor like Mueller whose sole context is a legal one,  but not for Congress in the middle of the decidedly political milieu of impeachment. The biggest question about the obstruction of justice impasse is who Mueller considered as the audience for his report—Barr or Congress. If it is revealed that, like previous prosecutors, Mueller thought that his job was to lay out a case for Congress, not Barr, to decide and the report makes a strong non-legal case for obstruction, then Nadler and the House Judiciary Committee will feel compelled to start impeachment hearings against Trump. “What else are we here for?”, they would justifiably ask.

I’ve always felt that impeachment hearings against Trump would be a colossal mistake. Such hearings would not change the minds of many voters. (Trump’s poll have been insanely consistent because nearly everyone has already made up their minds about him, one way or the other.) They would be a huge and potentially fatal distraction for the Democratic Party, which will have to focus relentlessly and totally on the 2020 campaign in order to beat Trump. Impeachment hearings would fire up Trump’s base to vote and to contribute money to his campaign. Most important of all, Trump will never be convicted and removed by the current Republican Senate. And that’s how it should be. We need to beat Trump at the polls in 2016, not ask the politicians to remove him for us.

But if it turns out that Mueller was making a case that he wanted Congress and not Barr to decide, then the Democrats would have a solid rationale for impeaching the Attorney General.

They could argue that Barr’s appointment was illegal, given his behavior before and since his confirmation. Barr blatantly auditioned for the Attorney General job ten months before he got was nominated by sending an unsolicited letter to the Department of Justice and Trump’s lawyers championing the notion that a sitting President could not be indicted. It’s entirely possible that an arrangement was made. Barr has certainly done everything he could since his confirmation to live up to the promises he made in his tryout.

They could charge Barr with lying to Congress if he releases a heavily redacted version of Mueller’s report, given that he told the Judiciary Committee that he would publish as much of the report as possible. They may have more evidence of this after Barr and Mueller both testify before Congress.

If Mueller’s report makes a strong case for obstruction, Congress could charge Barr himself with obstruction of justice for clearing Trump of that charge before Congress could see the evidence, giving Trump’s lawyers advance briefings on the Mueller report to help them prepare a rebuttal, coordinating with the White House on the timing and process behind the report’s release, and claiming that the Department of Justice spied on the Trump campaign in 2016 without providing any evidence.

Another potential impeachable offense by Barr would be the withholding of critical information from Congress and, by extension, the public. Barr provided his own four-page summary of the Mueller report and then, unlike previous prosecutors, withheld the release of the report for several weeks. He is not allowing Mueller or his team to participate in his press conference tomorrow, thus depriving Congress or the press the ability to question the special prosecutor.

In addition, Barr took an oath to uphold the Constitution by ensuring a non-partisan Department of Justice. Instead he preemptively cleared Trump of collusion and obstruction, briefed the White House on the report before its release, and interfered with Congressional oversight of Trump. Barr is the most partisan Attorney General since John Mitchell. (Barr might want to remind himself of Mitchell’s fate—nineteen months in prison.) Using the Department of Justice to favor one political party would be an impeachable offense.

Barr also swore to uphold the law. Instead he has put his Department of Justice on the side of repealing a lawful act of Congress—the Affordable Care Act—and just this week announced his department’s decision to hold asylum seekers at the border in indefinite detention, which is illegal according to both U.S. and international laws.

There is no chance that William Barr would be convicted and removed by the current Republican Senate, but after tomorrow there will probably be a strong case for Barr’s impeachment, and Congressional Democrats could pursue it without the considerable risks and downsides associated with an attempt to impeach his boss and master.