UPDATED: Has The Left Thought This Impeachment Thing Through?

Robert Mueller and John Brennan are nothing if not card carrying members of the Deep State. Thus, Mueller's parting shot at President Trump--with his less than subtle observation that "the constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing," which was quickly followed up by Brennan's full throated call for Congress to act on Mueller's prodding--is surely a measure of the desperation that the Deep State is feeling. Trump has come through the Russia Hoax inquisition in better shape than ever, with a Department of Justice primed under AG Bill Barr to get to the bottom of Deep State plotting against our electoral processes. The Deep State took its best shot at the king and failed with its Russia Hoax, but now the king is about to take his best shot at them.

That much I get. But I wonder whether the Left, which appears delighted with Mueller's irresponsible performance and is in full cry for impeachment, has taken stock of what impeachment would inevitably lead to. Have they weighed the speculation that Trump may actually want to be impeached, and what might be behind that? They might want to stop and think before taking the impeachment plunge, but then that might not be their style.

Those making the case that Trump wants to be impeached are, in fact, savvy observers of the political scene and they include a broad spectrum of pundits and politicians. Typically the argument runs that the American people don't want impeachment, especially with the economy booming, and will penalize the Dems for their madness in 2020. For example:

Don Surber:

President Donald John Trump wants them to impeach him because this is the best way to penalize Democrats for trying to frame him and remove him from office in a Deep State coup.

Conrad Black:

The Democrats have painted themselves into a corner. They must put up or shut up, impeach or back down. The president has called their bluff and the game is about to end, either an embarrassing defeat for the Democrats or political annihilation.

And, yes, Nancy Pelosi:

House Speaker Nancy Pelosi, D-Calif., told her Democratic colleagues Thursday that President Donald Trump “wants to be impeached” so that he can be vindicated by the Senate.

In fact, the implications of impeachment go far beyond these political considerations and get to the heart of the almost palpable fear now gripping the Deep State. Let's first review the approach Mueller took, because that will have a direct bearing on how impeachment would work in the case of President Trump.


First, note that Mueller's Report declined to accuse Trump of obstruction--although that will be the basis for any impeachment charges. The reason Mueller declined to make that charge--even privately to Barr--is because he had no criminal case for obstruction. The WSJ summarizes that fact clearly:

Yet Mr. Mueller’s analysis of the obstruction evidence in his own report makes clear that no investigation was obstructed. Not the FBI’s counterintelligence probe, and not his own. No witnesses were interfered with, and Mr. Mueller was allowed over two years to issue nearly 500 search-and-seizure warrants and interview anyone he wanted, including anyone in the White House.

Mr. Trump sometimes showed his exasperation ... in suggesting to more than one adviser that Mr. Mueller be fired, but no one acted on it. The special counsel probe rolled on without interference.

Had Mueller actually attempted to put together a criminal obstruction case from thin air in his report, that would have invited outright rejection from Barr on unassailable legal grounds. Barr did, indeed, make the determination that the report made no case for obstruction, but Mueller's ploy insured that the report would contain all the smears that might later be used for impeachment.

Notice too that, in his "parting shot" no questions press conference, Mueller again declined to accuse Trump of any crime. Instead he spoke of "wrongdoing." That choice of words was carefully considered. To understand what's at work in both Mueller's Report and his "parting shot," let's turn to Jack Goldsmith. Goldsmith, for those not familiar with him, is a NeverTrumper and an apologist for the Deep State. He's also articulate and an acute legal thinker. He's a Harvard law professor, a Senior Fellow at the Hoover Institution, and held key legal positions in the second Bush administration. Writing at Lawfareblog, Goldsmith forthrightly declares:

I have little trouble concluding that Trump committed impeachable offenses, should Congress want to pursue that option. 

What I am not sure of is that Trump committed a crime. Indeed, I am pretty sure that many of the 10 events outlined in Volume II of the Mueller report could not even theoretically be crimes under the obstruction statutes as they are currently written. (It is pretty settled in practice that an official can be impeached for behavior that does not rise to the level of criminality under the U.S. Code.)

This is exactly what Mueller is inviting Congress to do: impeach Trump for conduct that does not rise to the level of criminality, conduct that was not obstruction even in a theoretical sense. While I can accept the proposition that "an official can be impeached for behavior that does not rise to the level of criminality," I would nevertheless argue that to do so would almost always be unwise and, in this case, reckless. But let's see how this would work out.

What happens when the House impeaches a President? We have a trial in the Senate. And, granted that such a trial doesn't conform strictly to what would happen in a normal courtroom, what would we see? The House would present its case, presenting evidence and, presumably, witnesses. And that's where things would start to go very wrong for impeachment enthusiasts.

The problem is that, as at any trial, the President would get to question those witnesses. Even worse, if possible, the President would also get to present evidence on his own behalf, and call witnesses of his own choosing.

Part of what would make this scenario so problematic for the impeachment case is the vagueness of the charges, the fact that they would not involve strictly circumscribed criminal charges--or only charges that would not survive the most rudimentary scrutiny, as both Mueller and Goldsmith recognize. How would the President defend himself against such general charges of what Mueller and Goldsmith would call "wrongdoing"? In my estimation Trump would be well advised to make the same case he has been making all along: that he is the victim of a Deep State conspiracy that was launched and maintained for two and a half years, an investigation based on a hoax--a hoax that the investigators were a party to.

Would such a defense be allowed? I would argue that in the circumstances of an impeachment, and especially one that arose from an investigation that admittedly found no substantive wrongdoing (i.e., no "collusion"), no reasonable defense would be denied the President. With that in mind, consider what Goldsmith, the Deep State apologist, wrote over a year ago:

America doesn’t have coups or tanks in the street. But a deep state of sorts exists here and it includes national security bureaucrats who use secretly collected information to shape or curb the actions of elected officials. 

Some see these American bureaucrats as a vital check on the law-breaking or authoritarian or otherwise illegitimate tendencies of democratically elected officials. 

Others decry them as a self-serving authoritarian cabal that illegally and illegitimately undermines democratically elected officials and the policies they were elected to implement.

...

But even if we focus narrowly on the intelligence bureaucracies that conduct and use information collected secretly in the homeland, including the FBI, National Security Agency (NSA), and National Security Council, there is significant evidence that the deep state has used secretly collected information opportunistically and illegally to sabotage the president and his senior officials – either as part of a concerted movement or via individuals acting more or less independently. 

The hard questions are whether this sabotage is virtuous or abusive, whether we can tell, and what the consequences of these actions are.

Now, Goldsmith is only talking about leaks here. A year later, we now know beyond a doubt that the illegality went far deeper: a fraudulent investigation and FISA based on a "dossier" that the FBI was repeatedly warned against, and much more. If Trump's defense is that he was a victim of the type of sabotage Goldsmith (partially) describes, that Senate trial could turn out to be a real train wreck for the House.

For starters, who would the House call as witnesses? Mueller? Mueller is at the heart of the illegality that was the Russia Hoax. Devin Nunes and Andy McCarthy have argued persuasively that Mueller knew basically from the day he walked into his Special Counsel office that there was no "collusion" case, that he had no business running an investigation of the President. (And McCabe's obstruction-because-he-fired-Comey theory simply isn't serious.) That's a big part of why Mueller didn't want to testify before Congress--he didn't want to be questioned by the GOP representatives as to why he didn't call it quits when he knew there was no "there" there. Well, I'm here to tell you that it wouldn't get any better for him if he were cross examined by a pro like Emmet Flood, Trump's lawyer, at a Senate trial.

In fact, Mueller's problems go even deeper. Mueller was FBI Director when a secret Memorandum of Understanding (MOU) was entered into between the FBI and the National Counterterrorism Center (NCTC). That MOU, which was totally illegal, was concealed from the FISA court until NSA's Mike Rogers went to Chief Judge Collyer and spilled the beans. What the MOU did was to allow the private contractors to use FBI systems to run illegal searches on US persons. That was the basis for the initial illegal spying on the Trump campaign, which may have begun even before 2016. In short, Mueller would be an utter disaster as a witness for impeachment, and if the House didn't call him Trump certainly would. Nor would Mueller be able to refuse to answer questions, as at his "press conference."

What other witnesses would the House call? Brennan, Clapper, Comey, McCabe, Rosenstein, James Baker (FBI counsel to Comey), Loretta Lynch, Sally Yates? The list goes on, but once again, if the House didn't call these people Trump certainly would. They'd all be under oath, and they'd all be subject to cross examination and impeachment--both by other witnesses and by evidence. What a mess! Can you imagine a less savory bunch of witnesses?

And speaking of evidence ...

Yes, Trump would have access to whatever evidence he needed to make his case that he was the victim of Deep State illegality. Can you say "declassification"? If you think the Left and the Deep State is scared witless at the threat of declassification now, imagine how it would be when all that declassified documentation was aired on national TV! Trump and his lawyers would be licking their chops at the thought of using that mountain of declassified documentation against any House witnesses. And maybe even against some members of the House itself. The evidence would be compelling, and when Americans saw it they would find Trump's tweeting about the Russia Hoax and Mueller's witchhunt totally understandable. In fact, many who currently find Trump hard to swallow might begin to see him as a deeply sympathetic figure in the light of the evidence.

The Deep State is talking up impeachment, probably in the desperate hope that they can reach some sort of de facto ceasefire with Trump and Barr. Wouldn't it be ironic if the Impeachment Caucus in the House actually pushed ahead?

Last night commenter Mike Sylwester wrote that impeachment would be a circus, but a circus run by the Republicans--and a great chance to educate the public. I'm sure there are smart people in DC who've been thinking about that, but I don't the impeachment enthusiasts on the Left have done so. How educated do they really want the public to become? As it is, events are probably beyond their control at this point.

UPDATE: Well, maybe not so much an update as an addendum:

For anyone interested, here are three links to decent discussions of the meaning of the phrase "high crimes and misdemeanors". They're not really long:

https://en.wikipedia.org/wiki/High_crimes_and_misdemeanors#United_States

https://fedsoc.org/commentary/publications/impeachment-the-constitution-s-fiduciary-meaning-of-high-misdemeanors

http://www.crf-usa.org/impeachment/high-crimes-and-misdemeanors.html

My conclusion is that if the House should vote impeachment there would probably be no way to avoid a Senate trial, but there would be no way to make a convincing case. Trump has obviously not committed a "high crime"--if he had, it would have been highlighted in the Mueller Dossier--and the obstruction smears in the Mueller Dossier would be defended as the acts of an innocent president. Trump would present mountains of hard evidence to convincingly show that he was the target of an enormous conspiracy involving multiple serious illegal acts on the part of most of the top level officials in the Intelligence Community--in collusion with foreign intelligence services. The verdict would be a no-brainer, but the trial would shock and outrage the country, due to the revelations of corruption on the part of the Deep State, the Democrat party, and the Establishment media organizations.