Fact check: Trump focuses on ‘crimes,’ but impeachment is a political decision

Founders left it to Congress to define ‘high crimes and misdemeanors,’ scholars say

President Donald Trump and Speaker Nancy Pelosi, D-Calif., follow Senate Sergeant-at-Arms Michael C. Stenger and House Sergeant-at-Arms Paul D. Irving down the House steps on March 14. Trump pushed back on impeachment talk Monday, saying it was the Democrats “that committed the crimes.” (Bill Clark/CQ Roll Call file photo)
President Donald Trump and Speaker Nancy Pelosi, D-Calif., follow Senate Sergeant-at-Arms Michael C. Stenger and House Sergeant-at-Arms Paul D. Irving down the House steps on March 14. Trump pushed back on impeachment talk Monday, saying it was the Democrats “that committed the crimes.” (Bill Clark/CQ Roll Call file photo)
Posted April 22, 2019 at 1:46pm

ANALYSIS — Impeachment is very much on President Donald Trump’s mind even after he declared victory right as special counsel Robert S. Mueller III’s report was made public. But some of his arguments against it are contradicted by the former FBI director’s conclusions and legal scholars.

“Only high crimes and misdemeanors can lead to impeachment. There were no crimes by me (No Collusion, No Obstruction), so you can’t impeach,” the president tweeted Monday morning as the hashtag #ImpeachDonaldTrump was trending on Twitter in the United States. A few hours later, the president told reporters he was “not even a little bit” concerned about being impeached.

There are a few questionable assumptions and legal implications in those 23 words, starting with the president’s assertion that he did not obstruct justice.

Also watch: Barr on Mueller report ahead of release — ‘No collusion’

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‘No obstruction’

Mueller made no final conclusion on the topic — though Attorney General William Barr did, saying he and his deputy, Rod Rosenstein, found no criminal-level obstruction. But Mueller did find evidence of presidential-level obstruction, and included a damning passage about why he didn’t find even more.

The special counsel’s report plainly stated in that section that Trump very much tried on multiple occasions and through multiple aides to hinder, limit and even end the probe.

Trump’s attempts to do so “were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels,” according to the report. “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”

[Sarah Sanders lashes out at Democrats, April Ryan over calls for her firing]

So Trump’s repeated claims about “no obstruction” are not exactly accurate.

He also was asked Monday about those very findings, and replied: “Nobody disobeys my orders.” Trump spoke to pool reporters at the end of an appearance at the annual White House Easter Egg Roll, an otherwise cheerful event on the South Lawn that features a gaggle of children playing games and frolicking about.

‘High crimes and misdemeanors’

Then there is his implied definition about the Constitution’s use of “high crimes and misdemeanors” when laying out broad ground rules for Congress impeaching and removing a sitting chief executive.

Trump’s tweet suggests there is a finite legal definition for the phrase, and that anything he might have done fails to clear it. But the authors of the Constitution left the meaning of the phrase “open-ended for the reason many constitutional provisions are vague and open-ended,” as Georgia State University law professor Neil Kinkopf put it in an essay for the nonprofit Constitution Center.

“The Constitution cannot be expected to specify in detail every ground on which impeachment is or is not permissible,” Kinkopf wrote. “The Constitution sets forth the general principle of impeachment and leaves its more specific definition to be developed by the House of Representatives and the Senate.”

As Kinkopf noted — and other legal scholars and lawmakers from both parties have echoed — impeachment is much more of a political decision than one about criminality. Yet, the second part of Trump’s tweet also focuses on crimes he alleges took place. 

“It was the Democrats that committed the crimes, not your Republican President!” he wrote, referring to his assertion that Mueller’s investigation was started on “illegal” grounds.

[Trump feared ‘one of these independent counsels.’ He got something else]

“Impeachment is a powerful political tool for addressing a class of important and distinctly political problems, but it is not always the right tool for the job. Politics is inescapably at the heart of any impeachment,” said Keith Whittington, a politics professor at Princeton.

“Impeachments require the political act of persuasion to convince the public and legislators in a partisan political environment that the dramatic step of impeaching and removing a high government official is warranted in a particular situation,” he added.

Decision time for Democrats

The political nature of impeaching a sitting president — or other high-ranking federal official — is exactly why House Democrats were to huddle Monday on a recess-week conference call to discuss their next steps after the release of Mueller’s redacted report.

For now, House Democratic leaders and key chairmen are urging caution – but some of the latter are notably not ruling out an impeachment proceeding.

“I don’t think we’re doing that. We may get to that. We may not. As I’ve said before, it is our job to go through all the evidence, all the information we can get,” House Judiciary Chairman Jerrold Nadler told NBC’s “Meet the Press” on Sunday.

When pressed if he thinks parts of what Mueller laid out would warrant impeachment, Nadler replied: “Yeah, I do. I do think, if proven, which hasn’t been proven yet, if proven, some of this would be impeachable, yes.”

“Obstruction of justice, if proven, would be impeachable,” the New York Democrat said. “We’re going to see where the facts lead us.”

But it’s not exactly clear just yet whether Nadler’s assessment is correct.

That means Democratic leaders “would need to demonstrate that Trump’s continued occupation of the White House has become unendurable,” Whittington said, “and that leaving him to face the electorate again in 2020 and to serve out the remainder of his term poses unacceptable risks to the nation.”

That’s a high bar by design, however. The matter inevitably will take more than one conference call to resolve.

Correction 2:34 p.m. | Due to an editing error, an earlier version of this story misstated the timing of the House Democrats’ conference call on Monday.