Nancy Pelosi undermines the Democrats credibility by not proceeding with impeachment inquiries.
Tags: Nancy Pelosi, Democrats, Impeachment, Robert Mueller, Politics

Nancy Pelosi applauding Donald Trump during State of the Union. AP: Doug Mills

Having delivered his final report to the Department of Justice, Special Counsel Robert Mueller provided his first and what are likely to be his final public comments on the entire investigation in a press conference a few weeks ago. In doing so, the Special Counsel effectively reignited debate on the question of whether or not Democrats in the House of Representatives should begin an impeachment inquiry into the President.

It’s fair to say that the first calls for the President’s impeachment began within minutes of his inauguration, and these early calls most likely had more to do with the President’s general demeanour and temperament than any individual action he had actually taken. However, with the Mueller report complete it has become clear that Congress must make a decision on how to proceed, with the continued absence of a decision in many ways resembling a decision in and of itself.

First though, it’s important to consider what Robert Mueller actually found. Of all the elements in this debate, one of the most troubling is how few people have actually read his report, despite forming a firm position on what should be done about its findings. First and foremost, the report revealed widespread criminality, with 34 indictments, 7 convictions (so far), and at least 12 referrals to other investigators that may result in yet further indictments and convictions. While the US President was not one of those charged, in his speech Mueller made abundantly clear that this couldn’t occur within his investigation due to the well-known Justice Department guidelines (not rules) preventing a sitting president from being charged by that Department.

This polarising judgement has pleased some, while surprising and disappointing many others. It remains unclear if Robert Mueller was working within this constraint from the outset of his investigation or if he came to this conclusion later on. Legitimate questions have been raised about whether or not Mueller should have made clear this view early on to ensure that the public’s expectations were appropriately managed, and if he didn’t know it at the time then he could quite reasonably have sought clarification or confirmation from the Justice Department as to their current position / interpretation.

It’s worth remembering however that while hindsight is always 20/20, the investigation itself was not specifically aimed at the President, but rather at Russian government efforts to interfere into the 2016 presidential election, those efforts’ links with the Trump campaign, and any related matters that may have been identified in the process. With a remit this broad, the US President himself was only one potential figure of interest for the investigation, and without doubt the investigation did reveal a staggering degree of criminality. For the US President though, Mueller made clear that while he was free to gather evidence, in his view the US Constitution makes Congress the only appropriate entity to determine whether or not the President could be indicted and convicted. And in sticking to the existing guidelines, he has at the very least ensured that no legitimate complaint can be made about his conduct being in any way abnormal.

So having passed the ball over to Congress, where do they sit? With slight variations within them, it appears that five distinct positions have emerged. They are:

Republican + no collusion + no obstruction = move on Republican + it’s bad = no impeachment (Mitt Romney) Republican + it’s bad = impeach (Justin Amash) Democrat + it’s bad + impeachment is politically bad for us = do nothing Democrat + it’s bad = impeach

The first position is the most easily explainable. While the flagrant rule breaking outlined in the report would in previous generations offend the law and order party, in practise the President remains immensely popular within the party and time and again Republican members of Congress that go against him have seen repercussions for their future electability. It’s no surprise therefore that the loudest Republican voices of opposition to the President are the ones that are known to be retiring from public office. This would explain why positions 2 and 3 are populated by one member of congress each.

The two Democratic positions appear to have split the party (or at least its elected representatives) somewhere down the middle, though with prerogative over which issues proceed to the House floor resting with Nancy Pelosi, her position is in effect the default one. The latter of these two is simple enough to explain. Members in this camp have determined that the President has committed impeachable offenses, and therefore must be impeached, or at the least face an impeachment hearing.

Meanwhile the former camp believes that while the President’s behaviour is appalling, they have made the political calculation that impeaching him will not be beneficial to them with either their own electorates or the broader electorate, potentially leading to an improved standing for the President with the public. As the leading figure of this view, Nancy Pelosi is drawing on her not-too-distant memory of the Clinton impeachment which saw the President emerge with higher approval ratings from the whole process, with that impeachment having failed to reach a ‘conviction’ in the Senate. In this telling, a guarantee of success in the second step is a prerequisite for commencing the first, and Ms Pelosi has articulated this explanation on multiple occasions.

Unfortunately for the Democratic party, while the cold political logic of Pelosi’s objection to commencing impeachment proceedings is understandable, it completely undermines the rest of the party’s concerns and protestations about the President’s actions. The Democrats have attempted to take what they view as the moral high ground for the last few decades in political discourse, in theory distancing themselves from the win-at-all costs approach taken by the Republican Party since the Gingrich Speaker years. The challenge with this approach however is that in the public’s view, claims to a moral high ground tend to be absolute. That is, just a single instance of ethically questionable behaviour is no different from a thousand of them, as evidenced by the false equivalence drawn in the public’s eyes between the actions of Hilary Clinton and Donald Trump (and the endless ‘what-aboutism’ on Fox News).

If we go back to the 5 positions identified earlier, how different is the fourth one from the first really? They are both results of a cynical political calculus, one that looks no further than the individual’s electability (sometimes rationally). Yet the Speaker is capable and relied upon to take a longer and wider view, seeing the wood for the trees in these circumstances. In her comments she has compared the impeachment process to an indictment (and not a conviction as many incorrectly assume), yet surely the many former prosecutors in her ranks would recoil at the suggestion that alleged criminals shouldn’t be charged unless a conviction is guaranteed?

In criminal law, an indictment provides the legal justification for search and seizure and is a key component of the due process afforded to those charged, and is the very reason that standards of proof increase incrementally in a criminal investigation. With probable cause (the standard for an indictment) unambiguously demonstrated in the case of the US President, and 64 percent of Americans now believing that he probably committed a crime prior to entering office (Quinnipiac, May 2019), the continued dithering by the Democratic Congress is no longer putting off a decision, it is a decision, because the expected response to this level of evidence of criminality by the President would be an impeachment inquiry.

Robert Mueller is often described as an institutionalist. This means that he has a firm belief in the strength of institutions, and that if those institutions behave as intended the right outcome will inevitably eventuate. He has very carefully ensured that his output conforms to the norms of the institution he represents, working on the assumption that other institutions would then do the same. Yet by failing to do so, the US Congress is effectively enabling the President’s worst impulses, telling him and the public that breaking the law is fine as long as you have political support. They have to ask themselves, if they don’t follow through on the evidence already available, what exactly would it take for them to act, and why would the public listen?