MUELLER SHOULD INDICT PRESIDENT TRUMP

The Mueller probe into investigation of Russian Interference in the 2016 U. S, elections and related matters is hurtling to a conclusion and the next few months will see steps toward its denouement.  The cascading unfolding of evidence related to the Trump Campaign involvement in the Russian interference in American democracy has been exponentially increased by court submissions in relation to the convictions of Michael Cohen and Michael Flynn. (The latter with its redactions tanatlisingly pointing to a conspiracy).

 Added to the previous indictments of close on forty persons and the public confessions by Trump campaign advisor Roger Stone that he colluded with Wikileaks in the Russian hacked e mail dump that put the kibosh on the Clinton campaign, Trump and his campaign members’ legal jeopardy has become more and more evident. With far more revelations and criminal indictments to follow such as the Manafort and more Cohen court submissions at the end of the week, Trump understandably is becoming more and more unhinged as witnessed by his tweets. 

Just with the current public knowledge the Special Counsel has a slam dunk case of Obstruction of Justice and witness tampering. There is a persuasive prima facie action that there was a conspiracy between the Trump Campaign and Russia in that he was negotiating a Trump Tower real estate deal with the Russians where they would provide the finance in return for the lifting of the sanctions against them. Then there are several instances of Trump campaign members of conspiring with Russian agents to interfere with the outcome of the Presidential election. 

Robert Mueller will have to decide on the process whereby closure will be effected in his probe. Donald J. Trump has moved from a subject in the investigation to the target. It will be the Special Counsel’s decision as whether to recommend an impeachment process or criminal indictment. The conventional wisdom is against indictments on the basis that it is the Justice Department policy that a sitting President cannot be indicted. Also there is the Watergate precedent where impeachment was the vehicle for arbitration and not indictment. 

It is fair to say that the country is still viewing the whole process through a partisan lens. This so much so that the Republican Leader of the Senate Mitch McConnell refuses to allow a motion to protect Special Counsel Mueller from capricious termination. He is fearful that this will not go down well with the Trump base which is the Republican Party at the moment and represents forty percent of the electorate.

 In today’s climate it would be more appropriate to remove the issue of Trump’s guilt from the partisan political divide that rocks this country into the dispassionate judicial arena. It is also believed that the majority of the electorate turned against Trump for the very reason that they supported him in the first place - they wanted Congress to see to their needs. Two years of partisan bickering in Congress over the President’s guilt as opposed to resolving the problems the electorate voted on would increase the American society’s perception that politics is about the Washington swamp’s needs and internal bickering rather than improving their lives better.   

INDICTMENT OF A PRESIDENT, THE CONSTITUTION AND SETTLED LAW

It is common cause that the Special Prosecutor favors following the Justice Department’s internal policy which is not settled law nor is it Constitutionally mandated. In fact the Department’s injunction is counter intuitive as the Constitution decrees that all are equal before the law. As it happens what legal precedent there is supports that a President be subject to the full force of the law. Spiro Agnew, Nixon’s Vice President, while in office was criminally indicted and convicted. The Supreme Court unanimously ruled that Nixon had to respond to a subpoena for evidence and the court later decided that Bill Clinton could be deposed in a civil matter. Watergate Prosecutor Jill Wine-Banks confided that Watergate Chief Special Prosecutor, Leon Jaworsky, concluded that it would be politically more advantageous to use the impeachment process to resolve Richard Nixon’s fate.

WHY THE WATERGATE PROSECUTOR FAVORED IMPEACHMENT OVER INDICTMENT

It is easy to discern why Jaworski favored impeachment. (Jaworski also believed that after Nixon was removed from office he would be tried in court and not prospectively pardoned by President Ford). By the time Jaworski had completed his report the country had heard evidence in front of a bipartisan Senate Judiciary Committee for over a year. It was estimated that close on ninety percent of Americans had viewed at least part of the hearings. The whole saga was covered live on television. They heard Nixon’s WhiteHouse Counsel John Dean spill all the beans as to why there was a “cancer in the Presidency”. Everybody involved was subpoenaed and gave public testimony. The body politic saw the outcome of legal investigations and the conviction of those who perpetrated the burglary and all “The President’s Men”.The latter included Nixon insiders including his Chief of Staff, Counsel, his appointments secretary, his Secretary of Justice, members of his reelection committee including cabinet ministers, several advisors as well as those involved in overseeing the Watergate break in. 

In addition Republican members of the Congress Judiciary committee were responsible for key turning points in the saga. It was the ranking Republican member Howard Baker who framed the key issue before the Committee., “What did the President know and when did he know it”. It was the Republican Counsel Fred Thompson who gleaned from Alexander Butterfield, a Nixon aide, that Nixon had set up a tape system in the Oval Office that would put the final nails in the Nixon coffin. On top of this all the country had been privy to the “Saturday Night Massacre” where Nixon forced the resignation of the initial special prosecutor Archibald Cox and both his Attorney General and his Deputy resigned as a result.

All this happened as a prelude to Jaworski’s report to Congress whereupon the House Judiciary Committee on a bipartisan basis impeached Nixon. The House and Senate Republican leaders in addition to the de facto leader of the Republican Party Barry Goldwater went to Nixon and told him that the majority of the Senate members would vote to throw him out so that it was in his interests to resign.

THE DIFFERING WORLDS OF WATERGATE AND RUSSIAGATE

It is fair comment that three of the four Legislative investigations, have been disgusting partisan affairs. In addition much of what has transpired has been in secret and out of the hearing of the body politic. Nothing has happened to change the partisan narrative by the legislators. As matters stand If Mueller’s report goes to Congress, the Democratic House will impeach him and the Republican Senate will acquit him. 

 In addition the Special Counsel is not viewed by forty percent of the electorate as an objective arbiter in the matter so that his findings however persuasive and powerful will again be the subject of controversy cheerlead by the POTUS himself and reinforced by the FOX NEWS echo chamber. 

As the process proceeded Nixon’s approval numbers crashed. He had been reelected with a walloping sixty - one percent of the vote to McGovern’s thirty seven percent. His approval rating reached as high as sixty - seven percent. After the Senate hearings it dropped to the forties but as the impeachment proceedings loomed it was in the thirties and it finally reached  twenty - four percent at the moment of his resignation.  

It is fair to say that there have been neither the impartial public hearings, nor the bipartisan approach in the Russiagate affair as compared to Watergate. Although Trump has lost about twenty percent of his electoral support he is still hangs in at forty percent approval rating. Put another way there is not the public consensus for a political impeachment nor the bipartisan legislature to put it into effect. In this milieu an impeachment process will create division and resolve nothing as each side scores political points. 

ADVANTAGES OF INDICTMENT OVER IMPEACHMENT

The criteria for impeachment are “high crimes and misdemeanors”. Impeachment is essentially a political process and on its face is the most appropriate vehicle for deciding whether a President is fit to continue in office. It can invoke criteria while not crimes are germane as to whether the President is fit for office.  Courts do not weigh in on “misdemeanors” such as constant lying, misleading the body politic and unpresidential behavior such is bringing the country into disrepute. 

In addition impeachment will fully absorb the legislature’s time at a period in the country’s history when the electorate is sick to death of the failure of the government to address what it considers to be the real problems facing the country. Donald Trump was elected for this very reason to rid the country of the swamp and meet the needs of the worker and middle class. There was a dramatic kick back to his hypocritical, narcissistic, self serving venality which was reflected by  the blue wave in the largest midterm majority of any political party in the history of America - the Democrats winning the House with a forty seat gain from the Republicans. In short society will be totally disillusioned with government should the next two years be spent on an unseemly party political fight which as things stand will result in impeachment but not in removal of the President. 

The other criterion for impeachment “high crimes” can more than adequately be accommodated by the courts. Counts such as obstruction of justice, abrogation of the campaign finance laws, conspiracy with a foreign adversary against the United States of America, financial malfeasance  and other criminal activity can more appropriately be dealt within the Judicial system which will allow for evidence to be put forward unadulterated by pure partisan bias.

AT THE END OF THE DAY

It is possible but highly unlikely what Mueller releases in the next few weeks will influence the public opinion to the extent that they would back an impeachment. That would have to result in a consistent massive drop in Trump’s approval numbers and the Republican Legislators developing some civil responsibility or being pressured by their constituents to act. 

In the event that Trump hangs onto his base Mueller, who has in the face of taunts, humiliation and abuse from Trump and his echo chamber has not responded in kind but continued to do in a dignified and professional manner his constitutional duty, must make a decision to see that justice is served.

Mitch McConnell that faithful servile cynical servant of Trump in admitting that the Clinton impeachment was a political hatchet job that had a negative backlash on the Republicans has warned the Democrats not to go ahead. He warns that the Republicans will fight the issue politically and that the Democrats will suffer political reverses as they did. 

The only adults in the room, not for the first time, are the public servants. As in Watergate and now in Russiagate the civil servants have been the last line to save the Republic. Mueller needs  to take into account the brittleness of the body politic in making decision as to how to proceed. 

Whatever Mueller decides the country owes him an eternal debt of gratitude just as it owed the Watergate prosecutors in the Nixon impeachment and the Maryland Justice Department in their relentless prosecution of Vice President Spiro Agnew whom they, with Nixon’s then Attorney General, elected to indict him.