by Frank Thomas
Robert Reich in a New Video, “The Real Reason To Impeach Trump” is saying the president is not above the law and should be impeached for his unconstitutional conduct. The basis for impeachment is thus not political. It’s about whether enforcing our constitution is important for its own sake, like for example, our constitutional provision of checks and balances which Reich thinks Trump is violating. Before responding to this idea, some background highlights might be helpful.
BACKGROUND
Volume 1 of Mueller's report goes into well-documented detail how the Russians infiltrated our voting systems in 2016. Mueller said on TV yesterday they have been invading our voting systems for some time and are doing so right now. Volume 2 of the report also goes into well- documented detail how and when Trump, his lawyer, his associates, his son were willingly in contact with the Russians during the election campaign to exchange data, strategy and damaging information that would help Trump defeat Hillary.
Live before TC cameras, Mueller gave a not unimportant repeat question and answer explanation of key statements/conclusions in his report. Democrats wanted to hear the conclusions out of Mueller's mouth. That began with the first question: "The president has repeatedly said that your report concludes that there has been no 'obstruction of justice' and that he completely and totally is said to be innocent of any crimes. But that is not what your report says, is that correct? Mueller: "Correct. That's not what the report says."
Another question: "Based on the DOJ Office of Legal Counsel (OLC) ruling, a president cannot be indicted for a crime - despite your finding evidence of obstruction of justice. But after his presidency, Trump can be indicted. The reason you didn't indict president Trump was because of the OLC ruling, correct? Mueller: "That's Correct." Mueller then later said: "Without the OLC ruling, Trump would have been indicted." Then in his afternoon testimony, Mueller moderated that statement: "We have made no conclusion over the question of whether the president has committed a crime."
In his TV testimony, Mueller confirmed his report of the numerous contacts Trump and others working for him had with the Russians. He agreed that the president and his team welcomed the Russian interference and lied about it. After Trump's presidency, Mueller said he could be indicted on obstruction of justice in the court system. He didn't legally pursue testimony directly with Trump - something Trump refused to do - because it would have taken too much time to drag it through the courts.
So Mueller's investigative actions were restricted. He was bound by a DOJ Office of Legal Counsel (OLC) ruling that a sitting president cannot be indicted for a crime. His assigned task was to inform the Congress whether the Russians had invaded our voting system. Mueller stated clearly yesterday that his exhaustive report does not exonerate Trump for any possible crimes dealing with the Russians. Mueller did say he would have indicted Trump if not for the OLC decision. But he later watered down that statement. To repeat, Mueller's report gives much evidence on when and how Trump and his associates were in contact with the Russians to share information over the 2016 presidential elections.
But Mueller made it clear that investigating and pursuing whether obstruction of justice was committed by Trump sufficient for impeachment was NOT his assignment. The constitutional responsibility lies solely with the actions of three groups: House members act as the prosecutors; Senate members act as the jurors; the Chief Justice presides. These are the checks and balances set by the Founding Fathers. Constitutionally, the House has the sole power to impeach; the Senate the sole power to try all impeachments. The Fathers explicitly rejected making a Senate impeachment conviction appealable to the federal judiciary.
The Democrats now have 235 House members, enough to vote and impeach Trump with no Republican support. However, conviction and removal by the Senate requires a two-thirds Senate majority vote or 67 Senate votes Thus, 20 Republicans and all Democrats and Independents would have to vote against Trump. The Senate now has 53 Republicans, 45 Democrats and 2 Independents. So the two-thirds Senate majority vote needed to impeach and remove Trump is not going to happen. In fact, this has never happened. For this to happen, public sentiment would have to shift dramatically against Trump. And even then, it would be a long, brutally divisive legal process.
REICH's VIEW
Reich reminds us that Trump is not above the law. As noted, The Framers established three branches of government - the President, the Congress, the Judiciary - as a check-and-balance mechanism against each other, i.e., to constitutionally prevent one branch, like Trump's presidency, from trying to usurp, ignore or thwart the distribution of powers of other branches. Reich says Trump "appears to be" usurping the powers of the other branches. This constitutes a violation of our constitution; that in turn calls for the House to undertake an impeachment investigation and present evidence to the Senate.
I think Pelosi is caught between inflicting pain on Trump versus inflicting pain on Congress and the President in the ballot box. The House overwhelmingly killed a recent resolution to impeach Trump by 332 Republican and Democrat votes against and 95 Democrat votes for. My problem is the public wants to talk about healthcare, the climate crisis, infrastructure/education investments, a $15.00 minimum hourly worker wage, etc. Pelosi is struggling with going down the path of impeachment at this stage because it's so divisive, time consuming and NOT yet by far sufficiently supported by politicians of both parties and the general public .
In Pelosi's mind we get one chance to impeach, it must be strong. She's aware Mueller's report does not exonerate Trump from obstruction of justice. But the impeachment process must play out slowly in the courts to get it right. Reich is inadvertently taking inadequate cognizance of the gap we have in knowing precisely what should be unlawful presidential behavior and what is lawful behavior. He unconsciously admits that gap with his conclusion noted previously:
"Trump 'appears to be' usurping the powers of the other branches."
I agree with Pelosi's careful legal approach. The country must get rid of this mentally disturbed, hate mongering, brutally divisive president. If the daily public conversation turns preponderantly to an intensified, new investigation of the president, I think Trump's chances for re-election will dangerously increase. The average American wants to hear concrete “doable tomorrow” solutions to our serious societal problems.
The Master Distractor will make fools of the Democrats if they don't focus effectively and pragmatically on constructive solutions/actions to our nation's problems – healthcare for all, a $15 minimum wage, investments in education, infrastructure, the climate crisis … and how to finance them without exploding deficits and national debt as Trump and his Administration are doing on a grand scale with wild spending and tax cuts going mainly to the top 5% and corporations.
I'm not saying quiet investigations should not be continued regarding Robert Reich’s idea of building a case that Trump is usurping our constitutional ‘check-and-balances’ – which, even if such a case is not successful, is morally justifiable. But I think that course is justifiable only if – and that’s a very big IF – low key, quiet on-going legal investigations provide clear, overwhelming legal grounds/evidence of unconstitutional conduct by Trump.
Intensifying the impeachment process and diverting much attention to it also feeds the media’s love for drama. This seems a fool's path to simply shame Trump during one of the most critical, if not the most critical, presidential election(s) in our history. Especially knowing it’s unlikely the House and certainly not the Senate will approve an impeachment process. It risks opening the door wider for Trump to win a presidential second term.
Frank Thomas
The Netherlands
July 30, 2019
