In the wake of Special Counsel Mueller’s largely uneventful testimony Wednesday, no-one can envy House Speaker Nancy Pelosi’s impeachment dilemma. Presented with ample evidence of offenses justifying President Trump’s removal (the appalling violations of immigrants’ human rights are sufficient on their own) she also knows that no matter what he has done and no matter how compelling the evidence offered against him, Mitch McConnell’s Senate will never vote to remove this President from office.

Ms. Pelosi is also rightly loath to do anything that could sabotage the imperative of preventing a second Trump term. With a very winnable election a year and a quarter away, and with polls showing only a minority of Americans favoring an impeachment trial of Mr. Trump, attempting it may amount to a political death wish.

Finally, and sadly, an impeachment proceeding against the President seems unlikely even to focus the country’s attention on his misdeeds the way the investigation of President Nixon did forty-five years ago. In light of Mr. Trump’s, so far, largely successful obstruction of the House of Representatives’ various oversight efforts to secure the testimony of crucial witnesses and the production of relevant documents, public impeachment hearings may do little more than revisit evidence that, however under-appreciated, is already in the public domain. This scarcely makes for the kind of compelling television that galvanized the nation in 1973 and 1974.

And yet, Mr. Trump’s brief record as President is already the most lawlessly dangerous in our country’s history. His mistreatment of immigrants is only his most egregious offense. Special Counsel Mueller’s report details ten instances of obstruction of justice by the President in connection with the Russian election interference investigation. Mr. Mueller’s investigation also adduced direct proof of Mr. Trump’s pre-election offers of bribes to women to purchase their silence about his sexual activities. Additionally, there is the accumulating evidence of Mr. Trump’s systematic efforts to profit from his Presidency, and his posture of total resistance to Congressional oversight, an offense for which the House Judiciary Committee voted an Article of Impeachment against President Nixon. If Ms. Pelosi decides that this unparalleled array of unconstitutional and criminal misconduct doesn’t merit an impeachment inquiry, she may be remembered as the Speaker who effectively surrendered Congress’ constitutional power to protect the country from a lawless and tyrannical President.

If there is a workable way forward for the Speaker, one which serves her electoral interests while respecting her constitutional duty, she might find it by recognizing that the impeachment of a sitting president authorized by the Constitution involves two determinations by the House of Representatives: one legal, the other political. The legal predicate for impeachment is a judgment by the House of Representatives that the President has committed “High Crimes and Misdemeanors” in the exercise of executive power (or, perhaps also, in the effort to attain that power). However, this legal conclusion does not compel a decision to impeach. As a political institution, the House must also ask whether the country would be well served by the impeachment of the President. Only if the House answers yes to both questions should it trigger the President’s trial and possible removal by the Senate.

In order to make the first of these decisions responsibly, the House must thoroughly investigate what the President has done and then assess the constitutional significance of any misconduct it finds. Such investigation and assessment are surely long past due in the case of Mr. Trump, and ought to be commenced immediately. But a resulting determination that the President has likely committed High Crimes and Misdemeanors is not enough to warrant his trial in the Senate, even if the evidence against him is compelling. Because the impeachment decision is also political, House members may quite properly take account of popular sentiment, the prospects for conviction of the President in the Senate and the possible impact of an impeachment trial on the upcoming Presidential election. These prudential considerations might lead to a judgment not to impeach or, perhaps more significantly, not to take up the question at all. Presidential High Crimes and Misdemeanors are both legally necessary, but also politically insufficient, to justify impeachment.

A House investigation of possible High Crimes and Misdemeanors by President Trump will be a service to our country even if it does not result in his impeachment and trial by Mr. McConnell’s Senate. First, because a High Crimes and Misdemeanors investigation is an exercise of the House of Representatives’ constitutional Impeachment Power, it may strengthen the House’s ongoing efforts to enforce its subpoenas of Executive branch witnesses and documents in the federal courts. Second, a timely High Crimes and Misdemeanors investigation now will redeem the honor of the House of Representatives and give life to the “constitutional processes for addressing Presidential misconduct” to which Mr. Mueller deferred in lieu of recommending the President’s criminal indictment. And third, whatever it may lack in televised drama, a timely High Crimes and Misdemeanors investigation now will establish the kind of official record of Mr. Trump’s misconduct while in office and during his campaign that Special Counsel Mueller’s Report (and testimony) and other, narrower Congressional investigations so far have not. This kind of record may prove especially useful if President Trump is reelected and faces Democratic majorities in the House and Senate. The political context for impeachment then may look quite different than it does now.

Bruce Miller teaches at Western New England University School of Law in Springfield, MA.

Suggested citation: Bruce Miller, After Mueller: A High Crimes and Misdemeanors (but not Necessarily an Impeachment) Investigation, JURIST – Academic Commentary, August 1, 2019, https://www.jurist.org/commentary/2019/07/Bruce-Miller-After-Mueller-Investigation/

This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org