With a full weekend to digest the filings on Michael Cohen and Paul Manafort, the picture Robert Mueller’s investigation is assembling has come into better focus. And the news is not great for either Trump or Democrats.
Why isn’t it good for Trump? Well, because Mueller continues to be disciplined and methodical and the list of things we now know is troubling. If you’re looking for a straight-up list of the facts, I’d recommend Mike Allen’s summation here, but if you want to skip to the analysis, I’d recommend National Review’s Andy McCarthy, who argues that Trump is likely to be indicted by the Manhattan U.S. attorney.
If you’re a Trump defender and want to stay focused on the Steele Dossier and Peter Strzok, or you want say What About Obama! — well, that’s fine, I guess. But it’s getting harder and harder to muddy the waters here, and any way you slice it, having the president subject to possible indictment while his former campaign manager and personal fixer both go to jail is . . . not good.
But as a political matter, the Democrats are inching toward a difficult position, too. Because they don’t want to impeach Trump, but they’re slowly being pushed into a corner in which they may have no choice. And this could turn out badly for them.
When I say that “Democrats” don’t want to impeach Trump, I’m talking about Democratic elites. Democratic base voters are desperate to impeach him. Midterm exit polls shows 77 percent of self-identified Democrats saying they wanted to see Trump impeached.
Professional Democrats, however, are much less keen on the idea. They understand that impeachment is at best risky and at worst suicidal.
For Democrats who live in the real world of electoral politics, they understand that the 2020 campaign is their impeachment trial. They will have a single champion laying out the best possible case against Trump, over a prolonged period of time, in front of a jury which seems pretty stacked in their favor. And to sweeten the pot, they’ll get to do it when macro conditions—including the economy and the Senate map—are likely to be in their favor.
Trying to actually impeach Trump in the House would be greatly destabilizing for 2020. It seems highly—hilariously—unlikely that the Republican Senate would convict Trump on impeachment under any circumstances. Which would mean that if Trump were to be impeached, he would then be acquitted by the Senate and could argue in the presidential campaign that all of the various charges against him were disproven and that he had been the target of a witch hunt.
Is it possible that the chain of events triggered by impeachment could wind up hurting Trump for his reelection? Sure. Getting impeached is never a good thing. And maybe voters would decide that they’re tired of the Trump Show and want to change the channel. But it seems just as likely that a failed impeachment would hurt Democratic efforts and bolster Republican leaners.
Which is why the smart Democrats want to investigate Trump on everything, but impeach him on nothing. That’s how they preserve their maximum political advantage heading into 2020.
But there’s one big problem with this plan: What if Trump has to be impeached?
Yes, yes, yes. Impeachment is a political decision and no one ever has to impeach anyone. But we have a universe of possible outcomes for the Mueller investigation which range from “Trump is innocent as a lamb” to “Holy S#@!” And we appear to be sliding more toward the worst-case scenario end of that spectrum right now.
I’m not prejudging any of this. It really is possible that the final Mueller report will “totally clear the president.” The more likely outcome is that it will wind up in that gray zone where partisans can construct their own explanations to alibi him. Maybe these explanations will be reasonable. Maybe they’ll be tortured. But they’ll be the type of thing that 40 percent of the country will be able to buy into.
But what happens if there’s real evidence that Trump is guilty of serious crimes? What are Democrats supposed to do then?
Suddenly not impeaching him is as risky as impeaching him.
For starters, Democratic voters could revolt. That 77 percent pro-impeachment number from November was without anything to go on other than the limited framework of knowledge we have so far. If the Mueller report gives real evidence of serious crimes, that number will shoot over 90 percent. Most of the presidential contenders will have to be at least rhetorically pro-impeachment and any Democrat who isn’t onboard will be endangering her career.
You could easily have a moment in which the incentives for Democrats align so that individual careers are helped by actions that are likely to be harmful to the medium-term prospects of the party. (As the midterm results show, Republicans know all about this sort of mismatch problem.)
And then there’s the added problem of precedent. One of the reasons Republicans pursued the Clinton impeachment even in the face of bad polling was that they believed that not impeaching a president guilty of perjury was likely to lead to more perjury and bad acting by future presidents.
The same logic will apply if Trump is guilty of even more serious crimes. A Congress that does nothing in the face of such acts would be essentially giving up its authority to oversee the executive. Laws that are not consistently applied are not laws at all. If the House did not take up impeachment against a president who committed crimes, then impeachment would essentially disappear as a functioning part of the Constitution. Forevermore, there would be no way to impeach a president who is also a criminal. And this fact could embolden future bad actors who happen to occupy the White House.
Or it could go the other way. The counter-argument is that impeachment is a political, not a legal, process. That’s true in the most technical sense, of course. But the way in which impeachment has functioned in our Republic has depended on an understanding that these two ideas—law and politics—were somehow tethered. To refuse impeachment in a worst-case scenario would be to sever this tie and enshrine impeachment as a purely political procedure, like the filibuster.
So either we get to a world where you can’t impeach any president, no matter how wicked they are, or every president risks facing impeachment the minute his party loses control of the House. Neither of these outcomes is optimal.
In a strange way, this is one of those rare scenarios in which everyone’s incentives are perfectly aligned. All sides—Trump, the Democrats, the country at large, future generations—will be helped if Mueller’s final report falls short of being totally, undeniably, damning.
If only the facts were amenable to our preferences.
