Special counsel Robert Mueller’s cryptic message to Donald Trump’s attorneys—that the president is being investigated but is not currently a criminal target—is certain to intensify talk of impeachment. As Princeton University professor Keith Whittington told the Washington Post in response to the news, while Trump could still become a criminal target, “The president’s personal risk is primarily on the impeachment front.”
But if Mueller believes that Trump needs to be held accountable for any violation of law, he cannot expect Congress to do the accounting. There is only one mechanism that has any chance of working, and it is not impeachment. It’s indictment.
Impeachment is a dead end because the congressional jury pool is tainted. Mueller has been systematically demonized for weeks by Trump and his allies. For example, earlier this week Fox News host Sean Hannity warned of a proverbial “civil war … if Robert Mueller is so pompous and so arrogant and so power hungry and so corrupt” that he would accuse Trump of a crime (as if that’s the only motivation Mueller could possibly have). In turn, more than half of Republicans disapprove of Mueller’s handling of the investigation, giving House Republicans no incentive to get crosswise with their base and support impeachment.
Even if Democrats take control the House after the November elections, and unify around impeachment (both big ifs), a two-thirds vote of conviction in the Senate is almost surely impossible. In the wildest Democratic midterm election fantasy—a complete sweep of every 2018 Senate contest—Democrats would reach 58 seats, leaving them nine short of a two-thirds supermajority. Realistically, several more than nine Republicans would be needed to convict. But good luck finding even that many who would play Brutus to Trump’s Caesar. The only Republican senators who have vocally criticized Trump got hounded out of running for reelection and won’t be around to convict an impeached president.
And yet, the prospect of impeachment may well be front and center in the midterm elections. Two recent polls show that while a small majority of voters do not want to see House impeachment hearings, at least 7 out of 10 Democrats do. Billionaire activist Tom Steyer is trying to give voice to that Democratic base sentiment by hosting 30 pro-impeachment town halls across the country. A handful of Democratic congressional primary candidates are running on impeachment, including at least two—Florida’s Mary Barzee Flores and California’s Andy Thorburn—airing TV ads to that end. Republicans are more eager than Democrats to discuss impeachment, as they want to wake up a lethargic conservative base with alarmist predictions of what a Democratic House might do.
Most Democratic candidates may prove reluctant to take a stance, but they still will be dogged by impeachment questions on the campaign trail, especially if the special counsel’s investigation concludes before Election Day and reveals incriminating evidence of crimes committed by the president. Many voters will go to the polls thinking their ballot may decide whether or not the president gets impeached.
But if the impeachment push has no endgame, then why keep talking about it? It’s virtue-signaling to progressives, the ultimate proof of one’s Resistance bona fides. That can be useful in a crowded primary—be it 2018 or 2020—to rally a niche constituency. But those voters being wooed with impeachment talk should not be fooled: It is just talk, much like Republicans’ endless calls to repeal the Affordable Care Act during the Obama years.
The more serious discussion to have is about indictment. Democrats and progressive activists need not get over their skis and call for an indictment before Mueller finishes his work, as he may well declare that Trump has not committed any crimes. (The special counsel does not have to publish a public report explaining the results of the investigation, but the leaks to the Post indicate he intends to do so.)
But there is a legitimate and complicated debate over whether Mueller has the constitutional ability, and the Justice Department authority, to ask a grand jury to indict a sitting president. Mueller, a by-the-book sort, might be reluctant to try to set an untested legal precedent, not to mention his risk-averse and embattled supervisor, Deputy Attorney General Rod Rosenstein. But if Trump loyalists are waging war to pressure Mueller to stand down, Trump critics should invest in a countercampaign to convince Mueller that he is, in fact, empowered to indict.
Admittedly, it’s not a slam-dunk legal argument. The Justice Department’s Office of Legal Counsel wrote a memo in 2000, concurring and elaborating on one from 1973, contending that a sitting president cannot be indicted because it would “interfere with the President’s ability to carry out his constitutionally assigned functions and thus would be inconsistent with the constitutional structure.” That memo raises two pertinent questions for Mueller and Rosenstein: Is the OLC correct, and are they bound by the OLC’s opinion?
Prosecutorial teams investigating past Presidents Richard Nixon and Bill Clinton disputed the OLC view. In 1974, the Watergate special counsel staff argued that Nixon could be indicted because there is no explicit mention of immunity to prosecution in the Constitution, and if there was any problem with an indicted president carrying out his duties, the impeachment option would remain available. A 1998 memo from law professor Ronald Rotunda to independent prosecutor Ken Starr further argued that the 25th Amendment’s provision for temporary replacement of the president with the vice president could ensure the executive branch remains functional.
And last month, Walter Dellinger, a former head of the OLC under Clinton from 1993 to 1996, made the case in the New York Times that while the 2000 OLC memo “is persuasive in establishing that a president cannot be put on trial, it addresses only briefly the question of whether he could simply be indicted but not tried.” Since waiting to indict risks a lapse of the five-year statute of limitations on most federal crimes, Dellinger argues that presidents suspected of criminal acts should be indicted while in office, with their trials delayed until they have left office.
Here’s the rub: Both Rotunda and Dellinger also suggest that, constitutional issues aside, Justice Department rules require Mueller to follow the 2000 OLC memo. Rotunda notes that the OLC’s purpose is to “provide controlling advice to Executive Branch officials.” Dellinger proposes that before any indictment, Mueller first ask the OLC for a deeper exploration and formal opinion on whether sitting presidents can be indicted if the trials happen later. However, since the OLC is now headed by a Trump appointee, chances are such an opinion won’t be very helpful to Mueller.
But Harvard Law School professor Andrew Crespo rejects the premise that Mueller and Rosenstein are under the OLC’s thumb. Writing for the Lawfare blog, Crespo flags that the special counsel has under the law “independent authority” to investigate and prosecute, while the OLC has previously acknowledged its opinions are not automatically binding on those “authorized by law” to “conduct litigation on behalf of the United States.” Crespo further argues that Rosenstein’s power to block Mueller from pursuing an indictment is not absolute; Rosenstein would need to show that a proposed indictment violates Justice Department practices and explain his action to Congress.
Is Crespo right? I’m not a lawyer, and obviously, people who are lawyers can disagree in good (or bad) faith. But Mueller should hear loud and clear that there is a legitimate argument in favor of his power to indict—maybe ask his staff to produce its own memo—and not feel public pressure to take the easy way out: Punt to Congress, watch it gridlock, then let the voters adjudicate the matter in 2020.
The voters, however, can render only political judgment on Trump, not legal judgment. If by the end of the investigation, Mueller concludes Trump has a committed a serious crime, he should recognize that he has only two real choices: Indict or go home.