Is Trump's Justice Department Trying to Preempt An Impeachment? | Opinion

Impeachment is a political process, not a criminal proceeding, which means that not only can a president be impeached for things that aren't necessarily crimes—for instance, abuses of power, violations of his Oath of Office, and contraventions of the Constitution's Emoluments Clause—but those seeking his removal from office don't have to prove their case beyond a reasonable doubt or even presume his innocence.

In Washington, as we've seen across the last twenty-five years of intermittent Republican rule, might makes right. Nothing prevented Republicans from seeking President Clinton's removal in part over a noncriminal allegation of "abuse of power" any more than Mitch McConnell was prevented from blocking a duly nominated Supreme Court Justice because he felt like it.

These realities will soon run up against Department of Justice regulations that may make Congress' exercise of its constitutional oversight of President Trump all but impossible. First and foremost, there's a DOJ regulation that prohibits the indictment of a sitting president—meaning that even if Special Counsel Robert Mueller has damning evidence that the president committed Obstruction of Justice (putting aside any other crimes he might be accused of,) DOJ would be powerless to hold him to account.

Whether this DOJ regulation comports with Supreme Court precedent is in doubt. The Washington Post recently noted that under prior Supreme Court decisions a president can be subpoenaed for documents in a criminal investigation, a president can be subpoenaed to testify in a civil case, and "the fundamental demands of due process of law and the fair administration of justice" mean that a president can never be placed outside the reach of the law. The DOJ regulation, designed to avoid a president becoming distracted by ongoing litigation while in office, hardly seems in keeping with this binding precedent—as if a president can be subpoenaed to produce any amount of documentation demanded of him and even be commanded to offer up his person for hours of testimony, the question of whether due process of law can on occasion be permitted to consume the president's attention has already been resolved. That the matters now before the Department of Justice involve a significantly heightened level of malfeasance as compared to the fact-patterns of past Supreme Court cases, and that they include a national security component the likes of which the nation has never before seen in a presidential scandal, only further complicates the DOJ's sanguine belief in the sanctity of its own rules.

More recently, outgoing Deputy Attorney General Rod Rosenstein told a crowd, in an event televised on C-SPAN, that "if we [DOJ] aren't prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens." Putting aside that the recent Clinton email investigation repeatedly violated this standard, or that Trump's executive branch broadly writ long since crossed this threshold with respect to Russia—with Trump, the head of the executive branch, regularly accusing citizens of collusion with Russia or participation in a domestic coup without evidence before an audience of tens of millions on Twitter—the more important point is that if DOJ hews to this principle, it cannot reveal to Congress any information about Trump from Mueller's forthcoming final report, as whatever Mueller may write in that report about the president's misdeeds, he cannot (says DOJ) indict him.

The combination of the two DOJ policies described above would effectively make Trump immune from impeachment—thereby invalidating the Impeachment Clause of the Constitution, something even this right-leaning Supreme Court cannot and will not allow, either explicitly or implicitly. This suggests that DOJ policies will come under scrutiny in the coming months not only from countless counterintelligence officials and legal analysts and even former Deputy Solicitor General Neal Katyal—who wrote the Special Counsel regulations and now disputes how DOJ is interpreting them—but also by the nation's highest court. As Katyal notes, the fundamental principle undergirding the DOJ's Special Counsel regulations is "the need for public confidence in the administration of justice," an aim abrogated rather than fulfilled by putting the president above the law and invalidating the legislative branch's constitutional authority to check the executive branch. So Attorney General Barr may choose to take a narrow view of what he can release to Congress from Mueller's final report, but the Supreme Court will without question have the last word.

A third problem with the plan of action publicly disclosed by Trump's Department of Justice over the last few weeks is that it simply doesn't comport with the chief duty of the Department: investigating and prosecuting cases. As any criminal attorney or investigator knows, making out a case to a jury involves outlining the bad deeds of not only the defendant but other individuals—often uncharged individuals—whose actions facilitated or somehow intertwined with those of the defendant's. Even if Barr agrees to release to Congress for the purposes of a political proceeding (impeachment) the entirety of Mueller's findings with respect to President Trump—whether or not those findings meet the standard of proof, "beyond a reasonable doubt," required for criminal conviction—if he redacts from those findings any reference to uncharged persons he will make impossible the drafting of articles of impeachment against the president.

We know, from public reporting and a bevy of Trump-Russia books released since 2017, that the story of Trump's malfeasance domestically and internationally involves not just multiple nations—chief among them Russia, Saudi Arabia, Israel, and the United Arab Emirates—but also the actions of dozens of witnesses who are either cooperating with Special Counsel Mueller, and therefore will not be charged with crimes, or who are not cooperating with Mueller but nevertheless will be reported out to Congress as malefactors rather than criminals. Congress must have access to the entirety of Mueller's report, including detailed investigative reports on these cooperating or uncharged individuals, if it is to do its constitutional duty and protect the national security of the United States.

In the end, of course, the question will not be whether there is any evidence of collusion against Trump and his aides—as much such evidence is already public—but whether the evidence that exists rises to whatever standard of proof a hundred Senators individually decide should be applied in a political proceeding with grave national security implications but no criminal punishment attached. Whatever each Senator decides to do under these circumstances—whether it's apply an evidentiary standard of "probable cause" or "preponderance of the evidence" or "clear and convincing evidence" or "evidence beyond a reasonable doubt"—the DOJ regulations promulgated by Trump's own executive branch must not be permitted to render one of the most important functions of America's legislative branch inoperative. That would be not only nonsensical and corrupt but, more broadly, a terminal blow to America's rule of law.

Seth Abramson is Assistant Professor of Communication Arts & Sciences at the University of New Hampshire and author of Proof Of Collusion (Simon & Schuster, 2018.) On Twitter @SethAbramson​

The views expressed in this article are the author's own.​​​​​​