THE DAY after Robert Mueller’s report was made public, Elizabeth Warren, a contender for the Democratic presidential nomination who is polling in the single digits, tried to distinguish herself from the pack by calling for Donald Trump’s impeachment. A couple of other candidates, including Kamala Harris, weakly echoed her call. Democratic congressional leaders, by contrast, did not. Nancy Pelosi, the Speaker of the House, has spent the days since April 18th, when Mr Mueller’s report came out, tamping down calls from her left flank to start impeachment proceedings. Her second-in-command, Steny Hoyer, believes that “going forward on impeachment is not worthwhile.”
Mr Mueller described a level of presidential misbehaviour that would be shocking were it not for the frog-boiling nature of living through the Trump presidency. Yet Republicans overwhelmingly back the president, which makes removing Mr Trump from office a dim prospect. Democrats fear an unsuccessful effort to remove Mr Trump would help the president. But just moving on as if it were business as usual seems unacceptable too, signalling as it would that the only limit to the power of presidents is what they can get away with politically. How Congress and American political institutions respond in the coming weeks to Mr Mueller’s report will set precedents that could last for decades.
Mr Trump insists that he is “not even a little bit” worried about impeachment. “Only high crimes and misdemeanours can lead to impeachment,” he tweeted. “There were no crimes by me (No Collusion, No Obstruction), so you can’t impeach.” This is an imperfect reading of the evidence against him and of historical precedent.
In 1868 Andrew Johnson was impeached for (among other things) bringing the presidency into “contempt, ridicule and disgrace”, which is not a crime. Presidential campaigns often pay fines for violating campaign-finance laws, but no rational person would argue that those peccadillos constitute impeachable offences. Gerald Ford, who became president after Richard Nixon resigned rather than face impeachment, cynically but accurately said that “an impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
In 1998 the House decided that lying to a grand jury and tampering with witnesses constituted impeachable offences against Bill Clinton. In 1974 the House felt that obstructing a federal investigation, abusing executive power and ignoring subpoenas constituted impeachable offences committed by Nixon. Neither president was removed (nor was Johnson, who escaped by a single Senate vote).
Where does the behaviour chronicled in the Mueller report stand on the Johnson-Nixon-Clinton scale? Mr Mueller’s investigation “did not establish that members of the Trump Campaign conspired or co-ordinated with the Russian government in its election interference activities.” Yet the two sides were working towards the same goal (Mr Trump’s election) and were eager to help each other. Russian outreach began not long after Mr Trump announced his candidacy. By spring 2016 a Russian-linked professor was offering “dirt” on Hillary Clinton’s campaign to one of Mr Trump’s foreign-policy advisers.
That summer, Donald Trump junior, Jared Kushner, Mr Trump’s son-in-law and adviser, and Paul Manafort, his campaign chairman, met a Russian lawyer who promised “official documents and information that would incriminate Hillary.” Mr Manafort shared internal campaign data with Konstantin Kilimnik, an employee of his who both American intelligence and Rick Gates, Mr Manafort’s right-hand man, believed had links to Russian intelligence.
Meanwhile, Russian military-intelligence officers were hacking into and stealing documents from Democratic Party servers and email accounts of people working for Mrs Clinton’s campaign; and employees of the Internet Research Agency, a company based in St Petersburg, were building fake social-media accounts that reached as many as 126m people.
Both spooks and trolls repeatedly helped Mr Trump. The trolls staged pro-Trump rallies in at least three states. Five hours after Mr Trump asked “Russia, if you’re listening” to find 30,000 emails that Mrs Clinton supposedly deleted, the spooks began targeting Mrs Clinton’s personal office. An hour after a television network released a video of Mr Trump boasting about sexual assault, WikiLeaks released thousands of emails stolen from Mrs Clinton’s campaign chairman by the GRU, Russia’s military-intelligence agency.
Had Mr Trump not dulled the word “collusion” through overuse, it might seem to describe the relationship between his campaign and the Russian government: mutual aid coupled with persistent dissembling. Two former Trump campaign officials have pleaded guilty to lying to federal investigators about their contacts with Russia. The president’s personal lawyer testified that Mr Trump “knew of and directed the Trump-Moscow negotiations [to build a tower there] throughout the campaign and lied about it.” Mr Mueller says that his report may not provide a full picture of Trump-Russia links because people they interviewed “sometimes provided information that was false or incomplete,” while others “deleted relevant communications.”
The second part of Mr Mueller’s report concerns obstruction of justice. Before becoming attorney general, William Barr wrote a memo arguing that a president could not obstruct justice through the lawful exercise of his powers. Mr Mueller demolishes that theory. In his summary Mr Barr cited the absence of an underlying crime (conspiring with Russia) and Mr Trump’s habit of carrying out his obstructive acts in public (often via Twitter) as mitigating circumstances; Mr Mueller did not have time for that either. Mr Barr said that the president was “frustrated and angered by a sincere belief that the investigation was undermining his presidency.” But there is no exception for hurt feelings in the obstruction statutes.
Mr Barr also said that the White House “fully co-operated” with the probe. In fact Mr Trump refused to be interviewed, submitting only written answers. Mr Mueller sniffed at “the insufficiency of those responses,” noting that Mr Trump claimed some form of memory failure more than 30 times. Other answers were “incomplete or imprecise”. Mr Barr decided that the evidence failed to establish that Mr Trump obstructed justice. Mr Mueller does not seem so certain: “While this report does not conclude that the president committed a crime, it also does not exonerate him.”
Certainly the president engaged in conduct that a layman might consider obstructive. He fired James Comey, the FBI director, after Mr Comey did not accede to Mr Trump’s request that he “lift the cloud” of “this Russia business” and publicly state that the president was not under investigation. He tried to get Jeff Sessions, his former attorney general, to curtail Mr Mueller’s investigation. He repeatedly tried to compel subordinates to lie about matters under investigation.
He told Don McGahn, the White House counsel, to sack Mr Mueller. Mr McGahn (who comes out rather well) refused, complaining that the president had asked him to “do crazy shit”. “The president’s efforts to influence the investigation were mostly unsuccessful,” Mr Mueller wrote, “but that is largely because the persons who surrounded the president declined to carry out orders or accede to his requests.”
Mr Mueller declined to recommend prosecution because Justice Department guidelines warn against indicting a sitting president. But he left open the prospect of a post-presidential indictment, noting that he gathered evidence now “when memories were fresh and documentary materials were available.” And he recognised that “the separation-of-powers doctrine authorises Congress to protect official proceedings…from corrupt, obstructive acts, regardless of their source.”
Congressional Democrats do not agree on what such protection means in practice. The progressive wing was already keen to impeach; Mr Mueller’s report just added some petrol to their fire. But that makes impeachment look partisan rather than evidence-based, which will make joining them harder for the moderates from swing districts that Democrats rely on for their majority. A Politico/Morning Consult poll taken after the Mueller report’s release shows Mr Trump’s approval rating at 39%, tying an all-time low—but still five points higher than support for impeachment.
That could change if further malfeasance comes to light. Democrats are chasing Mr Trump’s tax returns and may start yanking on threads Mr Mueller left dangling. Who destroyed evidence, and why? If Mr Trump really is innocent, why was his reaction, on learning of Mr Mueller’s appointment, to slump back in his chair and say, “Oh, my God. This is terrible. This is the end of my presidency. I’m fucked.”
The White House is already resisting the Democrats’ efforts to subpoena some of those named in Mr Mueller’s report, contending that they are politically motivated. Legally that argument is weak, but the political salience of obstruction may wane during a long court fight. Others have tried to minimise Mr Mueller’s findings. Mr Kushner said that the investigation harmed America more than Russian election-meddling did. Rudy Giuliani, one of Mr Trump’s lawyers, said that he saw nothing wrong in accepting help from Russia.
Impeding a federal investigation and accepting help from a foreign adversary are precisely the sorts of offences that the founders would have considered impeachable. James Madison considered impeachment a remedy for “perfidy”, “peculation [self-dealing from public funds]” and “betray[ing]…trust to foreign powers.” The Justice Department warns against indicting a president because “the…impeachment process ensures that the immunity [from indictment] would not place the President ‘above the law’.” But if that process is not applicable to a president whose party controls a chamber of Congress, then in practical terms the president is protected from both indictment and impeachment. He is above the law.