Recently, my Harvard Law School colleague Andrew Crespo has published terrific analyses of obstruction of justice and of the amenability of a sitting president to criminal prosecution with Take Care and the Boston Globe. They are vital contributions to an important discussion.
In response to Andrew's argument that Special Counsel Robert Mueller would be well within the bounds of professional propriety in seeking a criminal indictment of President Trump for obstruction of justice, I would add only this prudential/constitutional worry: the stronger the case for the view that the special counsel might properly file criminal charges against Trump, the more powerful the argument for putting the thought of impeaching Trump in the House of Representatives (and ultimately convicting him in the Senate) on a remote back-burner.
Indeed, this is already what Representatives Nancy Pelosi and Adam Schiff, and other entirely admirable leaders of the Democratic Party, are essentially pleading with liberals and progressives both in politics and in the academy to do.
In urging that the weighty “I” word not be so readily muffled, I have joined a small band of stalwarts who are pressing the House to immediately initiate investigations into potentially impeachable offenses by Trump. To be clear, some of these offenses would not constitute federal crimes if charged in an Article III court, even accepting Andrew's analysis of the obstruction of justice statute and the scope of a president's immunity from criminal prosecution while still in office.
For instance, offenses like brazen violations of the Emoluments Clauses and the Establishment Clause -- and probably obstruction of justice more loosely defined than in the U.S. Code -- would not be federal crimes chargeable by a special prosecutor (or by any other law enforcement official), but would more than suffice as grounds for impeachment.
With particular reference to obstruction, I'd note that a key distinction between a criminal offense and an impeachable offense may turn largely on the President's own state of mind. Whereas the federal obstruction statute requires proof of a particular intent (e.g., intending to further some illegal outcome or corruptly block a specific proceeding), the House would be free to take a broader view of the mens rea that could support impeachment based on obstruction of justice. For instance, even if Trump subjectively believed that he was doing nothing wrong, the House might conclude that he still committed impeachable obstruction if his subjective belief was grossly negligent or totally reckless -- in other words, if Trump's belief that he was doing nothing wrong was absurd and overwhelmingly contracted by available evidence. While the Madison-inspired rejection of George Mason’s proposal of including “maladministration” as a constitutional ground for impeachment does cut against treating negligent conduct as a "high crime" or "misdemeanor," that drafting history is not strong enough to rule out entirely mens rea showings below willfulness or knowledge as sufficient bases for impeachment.
It must be acknowledged that, in this insistence on taking a more comprehensive view of when a president can properly be impeached, I have accounted for the broad (albeit hardly universal) consensus that a sitting president cannot be indicted. There are several dispassionate OLC opinions to that effect, which would and probably should carry the day with Robert Mueller in thinking about whether Trump can be charged in a federal court for any conduct that specifically violates a federal criminal statute.
To be sure, there is another position -- a middle ground view, really -- to which I am also sympathetic: namely, that the President enjoys immunity from trial, conviction and sentencing while in office, but not immunity from indictment. OLC has previously considered this position and, in fact, actually adopted it with respect to Vice Presidents when it prosecuted Spiro Agnew. (That said, there are reasons to doubt the value of the Agnew case as a precedent here since, unlike the President, the Vice-President obviously has no formal power or authority vis-à-vis DOJ, so the paradox of an officer being prosecuted by that officer’s direct subordinates is absent with respect to the Vice-President).
In all events, this discussion raises an obvious question: would I be so quick to respect that near-consensus about presidential immunity from criminal indictment (or proceedings) if we were talking about a president whom I supported politically rather than one I’ve opposed wholeheartedly from the start?
The answer, I genuinely believe, is yes. If President Obama or an imaginable President Hillary Clinton (1) had sought to cover up an FBI inquiry into alleged collusion with a foreign adversary during the process of their election to the highest office, (2) had brazenly defied the two Emoluments Clauses from the start of their presidencies, (3) had taken steps in profound tension with the Establishment Clause principle barring government action born of animosity toward a specific religion, (4) had recklessly shared Israeli intelligence bearing on ISIS with Russia either to boast of their prowess or to boost their wealth, and (5) had brought someone like Turkish agent Michael Flynn aboard as National Security Adviser and backed him up in serving his own financial interests (and those of his client Erdogan) in delaying a planned military mission in Raqqa targeting ISIS ... Well, in that event, I have no doubt at all that I would eagerly support moving toward that president’s impeachment and removal without waiting a single day for a special counsel like Mueller to pursue a course that might in fact consume years and would be confined to the limits of federal criminal law.
Of course, this partly presumes that we can conceptualize impeachable offenses, including a broader view of obstruction of justice, without fear of criminalizing politics. It is this fear that has led others, including my former colleague Alan Dershowitz, to insist on a narrow view of "high crimes & misdemeanors." But that concern is overstated in this circumstance. The President’s asserted sweeping authority to fire the FBI Director for no reason at all – even if Professor Dershowitz were right about that, which I think he isn’t – doesn’t remotely imply that the President’s decision to do so for a forbidden reason, like deterring or slowing down the FBI’s discovery of an underlying conspiracy by the President’s campaign to tilt the election his way in collusion with a foreign nation, cannot properly be the subject of impeachment and removal from office, whether or not it can properly be deemed the federal statutory crime of “obstruction of justice.” It would hardly knock our ordinary political practices off their orbit, or chill them in any worrisome way, to set conduct like this wholly out of bounds.