If Robert Mueller, an accomplished prosecutor, makes a case against Donald Trump it will be watertight legally — and that’s the danger for Trump, writes Bette Browne
US investigations that end up with impeachments are a little like some Irish referenda — they start out with one question, but then other issues emerge and it is these that can trip up American presidents.
That’s what happened in the cases of former presidents Republican Richard Nixon and Democrat Bill Clinton and could ultimately happen to Donald Trump.
Nixon’s probe was to be all about his suspected responsibility for a break-in and an attempt to plant listening devices at the Democratic National Committee headquarters at the Watergate hotel in Washington in 1972.
But then the probe discovered secret tapes of conversations in the Oval Office that proved damning for the president. When the Supreme Court ruled unanimously in July 1974 that Nixon had to hand over the tapes, one of them — the so-called “smoking-gun” tape — proved the president was involved with the cover-up from the beginning.
Impeachment proceedings began for obstruction of justice and he resigned in August 1974 to avoid almost certain impeachment by Congress.
In Clinton’s case, the 1994 impeachment probe by Kenneth Starr was to investigate financial irregularities involving the Whitewater property company in Clinton’s native Arkansas.
But along the way, Clinton lied about a sexual relationship with White House intern Monica Lewinsky and it was that lie and related obstruction of justice that sealed his fate in 1998.
But, while Clinton was impeached in the House of Representatives, the Senate acquitted him. In fact, the Senate failed to convict the only two presidents ever impeached — Andrew Johnson in 1868 and Clinton 20 years ago, so both impeached presidents were able to remain in office. So far, no president has been removed from office by impeachment and conviction.
Americans still argue about the grounds for Clinton’s impeachment and say Democrats should be wary of following that template in any impeachment moves against Trump.
In Nixon’s case, the impeachment proceedings had bipartisan support, the argument goes, but in Clinton’s case his impeachment was politically motivated because Republicans simply had the numbers to do it.
“The impeachment of President Clinton was more a circus than a serious effort to remove the president of the United States,” according to Susan Low Bloch of Georgetown University Law Center.
“The reason is simple: few people, in the Congress or the country, wanted to remove him or believed the impeachment effort would actually result in his removal.
“Instead, it was a partisan political effort to embarrass Clinton and send a message of disapproval.”
She goes on to argue, in a paper entitled Assessing the Impeachment of President Bill Clinton from a Post 9/11 Perspective, that “such a frivolous use of the impeachment process is inappropriate and dangerous”.
But Trump’s investigator Robert Mueller is in quite a different league from Kenneth Starr.
Mueller can never be accused, as Starr was, of being driven by moral or political imperatives. Trump may rail against him, but Mueller, 74, is generally highly regarded among leading members of both parties as an accomplished prosecutor. He also happens to be a Republican and is a former director of the FBI.
Any case Mueller may carve out for the president’s impeachment will not focus on issues surrounding alleged extra-marital affairs. Mueller’s case, if he makes one, will be watertight constitutionally and legally, and therein lays the real danger for the president.
Trump knows this and that is why he constantly tweets against Mueller and what he calls his “witch-hunt”. That is also why he keeps putting pressure on his attorney general, Jeff Sessions, to end the investigation.
Trump complains that the 16-month-old investigation has been going on for far too long. But the probe of Nixon lasted over two years, and that of Clinton lasted four years.
In May 2017, Mueller was appointed special counsel to oversee the US Department of Justice’s investigation into whether Russia had influenced the 2016 election, in which Trump defeated Democrat Hillary Clinton, and whether there was any collusion with Russia by Trump or his campaign.
Even as Trump continues to rail against him, Mueller’s position is now becoming far more secure as his investigation, which has branched out in a number of directions, is showing concrete results.
His team, working with the FBI, has been responsible for charging four Americans once affiliated with Trump’s campaign or administration, 13 Russian nationals, 12 Russian intelligence officers, three Russian companies, and two other individuals.
Mueller’s biggest success came on August 21 with the first conviction in his probe — that of former Trump’s campaign manager Paul Manafort, who was found guilty on eight counts of tax and bank fraud. His second trial on a range of other charges begins in Washington on September 17.
But the real bombshell that left the White House reeling on August 21 came later in the day when Trump’s former lawyer Michael Cohen directly implicated Trump in ordering campaign funds to be used to silence women with whom Trump allegedly had affairs.
Cohen said he made payments to two women in violation of federal campaign laws “in coordination with and at the direction of a candidate for federal office,” a reference to Trump.
But, potentially even worse for Trump, Cohen said he did so “for the principal purpose of influencing the election”.
Having extra-marital affairs is not a crime. But what is a very serious crime is using campaign funds to silence people who had information that might be detrimental to the 2016 campaign and to the candidate.
A day after Cohen’s statement, amid headlines that described Trump as “an un-indicted co-conspirator”, Trump said on Fox News on August 22, that the payments to porn star Stormy Daniels and Playboy model Karen McDougal to buy their silence “came from me” but not from campaign funds, dismissing suggestions of wrongdoing.
Cohen himself faces sentencing in December. Others linked with Trump who have been indicted or convicted include Rick Gates, one of Paul Manafort’s business partners and a former campaign aide to Trump, who was indicted in October 2017, George Papadopoulos, a former Trump campaign adviser, was arrested on October 5, 2017.
He pleaded guilty to lying to the FBI about his contacts with Russia and subsequently cooperated with Mueller’s team.
Michael Flynn, Trump’s former national security adviser, pleaded guilty on December 1, 2017, to lying to the FBI about his conversations with Russia’s ambassador to the US at the time. He is awaiting sentencing.
Whether the Mueller investigation will ever make a case that could lead to charges, and impeachment moves against Trump in Congress, should become clear in the coming months.
Mueller is only authorised to prosecute anyone who committed a federal crime. He can initiate investigations, subpoena records and work with the FBI to bring criminal charges, but he cannot impeach anyone. Impeachment is a political process. In essence, it’s a two-step congressional trial.
Grounds for impeachment are defined in the US Constitution as “high crimes and misdemeanours”.
The Constitution specifies in Article II, Section 4, that: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high Crimes and misdemeanours”.
However, the exact meaning of the phrase is not defined in the Constitution. That’s been left up to the House of Representatives.
And a president can be impeached for abusing his authority, even if he has not committed any crime. The impeachment charges usually cover allegations of misconduct, such as perjury, abuse of authority, bribery, intimidation, misuse of assets, dereliction of duty or refusal to obey a lawful order.
Debate over the phrase “high crimes and misdemeanours” has split into two camps. Some believe in a literal reading of the US Constitution. They maintain that high crimes means what it says — criminal activity — and argue that the framers of the Constitution wanted only criminal activities to be the basis for impeachment.
But the generally accepted viewpoint is much broader. It defines high crimes and misdemeanours as any serious abuse of power — including both legal and illegal activities.
The trail by the US Congress is two-pronged. It begins in the House of Representatives, which lays out the charges and then votes on whether an individual should be impeached based on those charges.
If there’s a vote for impeachment, the case is then taken up by the Senate, where a “trial” is held and the senators vote for conviction or acquittal. An acquittal means the impeached individual can remain in office — as did Johnson and Clinton.
Impeachment proceedings may be started by a member of the House of Representatives either by presenting a list of the charges under oath or by asking for referral to the appropriate committee. A resolution seeking to impeach a particular individual is typically referred to the House Committee on the Judiciary.
If the committee finds grounds for impeachment, it will set out specific allegations of misconduct in one or more articles of impeachment. The impeachment resolution, or articles of impeachment, is then reported to the full House with the committee’s recommendations.
The House debates the resolution and a simple majority is required for each article for the resolution as a whole to pass. If the House votes to impeach, the Senate then takes up the case and two-thirds of the senators must vote for conviction.
There is a perception that any impeachment comes down to a numbers game and that if Democrats win one or both chambers of Congress in the November mid-term elections that Trump is almost certain to face impeachment. But that is far from the case. For a start, the Democrats are deeply divided on whether or not they should move to impeach Trump if they do well in the November elections.
They are wary that it will be seen as a purely political move that could badly backfire, particularly if they don’t get some Republican support for it.
Many within the party say they lost the last election to Trump because instead of concentrating on what they were for — pushing progressive policies and fighting for those who felt abandoned by the party — they concentrated instead on fighting against Trump, even calling some of his supporters “deplorables”.
A move to impeach Trump should take a back seat, these Democrats argue, and instead they should use any mandate they achieve to implement policies that help create more jobs and improve education and healthcare.
In any case, even if the party wins control of the House of Representatives they look unlikely to do so in the Senate so even if they were to impeach the president they would still not have enough votes in the Senate to convict him and remove him from
office. They might hope, of course, that he would resign. But Trump is not Nixon and Trump’s Republican party is not Nixon’s Republican party.
Republicans have shown time and again that they will not abandon Trump. After all, he’s been very good to many of them, signing off on their tax laws that will yield an estimated $17bn in tax savings for millionaires in 2018. And he’s already sent one conservative judge to the US Supreme Court.
Still, Trump is extremely worried about his fate after the elections and is telling supporters and voters beyond his base that if they don’t come out and vote Republicans back into the House in big numbers in November he could end up being impeached.
Just last week, on August 28, he went a step further and told a meeting of evangelicals at the White House they should urge their congregations to come out and vote for local Republicans, warning of dire consequences and even violence should his party lose.
“They [Democrats] will overturn everything that we’ve done and they will do it quickly and violently,” the president declared.
One powerful Democrat who disagrees with leading members of the party that pushing impeachment is politically dangerous is California millionaire Tom Steyer.
He’s spent over $100m so far on his “need to impeach” campaign and in turning out young voters in battleground states in November.
Neither does he think it’s even necessary to wait for completion of Mueller’s probe.
“Any evidence that he brings that is helpful to our case, we welcome ... But we also believe there is more than enough information in the public domain to impeach and remove this president... ranging from Mr Trump’s intended obstruction of justice to his abuse of the pardon power.”
And it is true that a president can be impeached for abusing his authority, even if he has not committed any crime Steyer sees his movement as patriotic not partisan.
“It’s patriotic,” he emphasises. “After all, if it succeeds, the Oval Office will still be occupied by a Republican until at least January 2021” because Vice President Mike Pence would succeed Trump.
But there is also another issue that could arise before the mid-term elections to help Trump. This scenario centres on any request by Mueller for testimony from Trump. If Trump were subpoenaed and refused to comply, a legal challenge would ensue and most likely end up before the US Supreme Court.
Trump would also likely challenge the whole idea that a sitting president can be charged. The Constitution doesn’t answer this question and neither has Congress. The closest the Supreme Court has come was a narrow ruling in 1997 that a sexual harassment lawsuit against Clinton could proceed.
So if there were to be any Supreme Court challenge by Trump, the make-up of the court would be crucial. At present it tends to be evenly split between liberal- and conservative-leaning judges. But if Trump’s current Supreme Court pick Brett Kavanaugh is confirmed by the Senate, the court could then be regarded as being more sympathetic to any challenge to Mueller that the president might bring before it.
Kavanaugh was a member of the Starr team that investigated Bill Clinton but later argued that a sitting president should be above the law.
“I believe it vital,” he wrote, “that the president be able to focus on his never-ending tasks with as few distractions as possible...the indictment and trial of a sitting president, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas.”
He said this would not place presidents entirely above the law because inquiries and indictments would simply be deferred until the end of a scandal-plagued presidency Anticipating this possibility, most Democrats in the Senate are opposed to Kavanaugh’s nomination.
That confirmation battle, which could have a major impact on any impeachment moves, is set to play out in the coming weeks because Republican leaders have pledged to have the confirmation process completed before the Supreme Court starts its new session in October.
So it would be very dangerous for the Democrats, and of course for the country itself, to turn impeachment into a convenient political football, as many argue happened with Clinton’s impeachment.
Impeachment, as the US constitution says, should be reserved for genuinely high crimes.
At the end of the day, Donald Trump’s fate depends not so much on the strength of Democrats in Congress but on the strength of Mueller’s investigation and whether it ultimately cites Trump’s involvement in what most Americans would genuinely regard as “high crimes or misdemeanours”.