AUTHOR’S NOTE: The author of this blog post is not an attorney and does not claim to be an attorney.
Earlier today, Robert Swan “Bob” Mueller III formally announced his end of service as the Special Counsel overseeing an investigation, whose conclusions were published in the Mueller Report, into Russian interference in the 2016 U.S. presidential election, as well as into alleged acts of obstruction of justice by President Donald Trump. A transcript of Mueller’s statement can be found here.
Remember that the incumbent President cannot be indicted in the federal jurisdiction while holding the office of the presidency. This does not exist as a provision of the U.S. Constitution or, to my knowledge, as a federal statute, but as an internal policy of the U.S. Department of Justice based on an interpretation of the Constitution that is inconsistent with my own personal interpretation of the Constitution. However, Mueller’s statement earlier today reads like an implicit recommendation of Congressional impeachment of Trump, even if Mueller didn’t go as far as to explicitly call for Congress to impeach Trump:
First, the opinion explicitly explicitly permits the investigation of a sitting president because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.
And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.
And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.Robert Swan “Bob” Mueller III, via Intelligencer
Here’s how U.S. Representative Alexandria Ocasio-Cortez (D-NY) summarized Mueller’s statement earlier today, and it’s much more direct than anything else I could say:
Due to the fact that President Trump was not exonerated by Mueller in any way whatsoever, it is my belief that Congress must begin the impeachment process against Trump as soon as possible by allowing the U.S. House Judiciary Committee to hold impeachment hearings. No individual in this country, whether it be the President of the United States or anyone else, should be above the law’s commands, and the Mueller Report made it inherently clear that Trump intended to obstruct justice by obstructing the Special Counsel’s now-closed investigation.
The impeachment process against President Trump would likely involve a three-step process, the last two of which are explicitly mentioned in the U.S. Constitution.
The first step of the impeachment process, the only step not explicitly mentioned in the Constitution, would be impeachment hearings. Impeachment hearings, which would be expected to be conducted by the House Judiciary Committee, would determine whether or not any impeachment charges against Trump would be recommended, and would likely involve a fact-finding process to help determine whether or not to recommend impeachment charges against Trump. Impeachment hearings would serve as the impeachment process’s equivalent to a grand jury proceeding in a normal criminal proceeding. If anything that arises during impeachment hearings results in a high likelihood that the President would be removed from office in an impeachment trial, the President may resign from office to avoid potential removal from office, like what Richard Nixon did in 1974.
The second step of the impeachment process would be vote(s) by the full U.S. House of Representatives on whether or not to press impeachment charges against the President. This step of the impeachment process is mentioned in Article I, Section 2, Clause 5 of the Constitution, which states, in part, that ” The House of Representatives…shall have the sole Power of Impeachment.” It is important to note that the “Power of Impeachment” in Article I, Section 2, Clause 5 refers to the act of pressing impeachment charges, not the impeachment trial that determines whether or not an individual facing impeachment charges is removed from office. The vote(s) in the House on whether or not to impeach charges are analogous to a prosecutor’s decision whether or not to file criminal charges against an individual in a normal criminal proceeding.
If the House votes to press impeachment charges against Trump, the third step of the impeachment process would be the impeachment trial. The impeachment trial of a sitting President would be held in the Senate with the Chief Justice of the United States, not the Vice President, Senate President Pro Tempore, or Senate Majority Leader, presiding over the impeachment trial, as required by Article I, Section 3, Clause 6 of the Constitution. An impeachment trial is analogous to a criminal trial in a normal criminal proceeding: the membership of the U.S. Senate is analogous to a jury, the impeachment managers would be analogous to prosecutors, the President would be expected to be permitted to have legal counsel representing him at the impeachment trial, and the Chief Justice would serve in a role that would be analogous to a criminal trial judge. The Constitution requires at least two-thirds of the total membership of the Senate to vote to convict the President on at least one impeachment charge for a conviction at impeachment trial. Per Article I, Section 3, Clause 7 of the Constitution, a conviction of the President at impeachment trial would automatically remove the President from office, and, if the President is removed from office at impeachment trial, the Senate, at impeachment trial, would also have the option of permanently banning the removed President from holding public office in the United States.