Even if you are a politics buff, it’s tough to get a handle on what will happen when special counsel Robert Mueller finally concludes his investigation into Russian meddling in the 2016 US election.
Fear not, however. Quartz spoke to constitutional law scholar Susan Low Bloch, a professor at Georgetown Law, to break down the significance of the special counsel’s report, the attorney general’s role, what an impeachable offense even means, and who in government does what when considering the removal of a president.
Bloch testified about impeachment before Congress in 1998 when then-president Bill Clinton was under investigation by Kenneth Starr. While the US Constitution, which lays out the grounds for presidential impeachment, remains the same, much has changed since then. Most notably, the statute that first created the special counsel’s authority, passed by Congress as a result of Richard Nixon’s malfeasance in office, expired in 1999.
As Bloch puts it, the special counsel law “was always considered by legal scholars to be an odd duck.” The problem was that it didn’t clearly respect the separation of powers laid out in the Constitution. According to that statute, a panel of three federal judges appointed a special counsel, who essentially acted as a prosecutor reporting directly to the House of Representatives, meaning that the judiciary and legislative branch were investigating the executive branch of government.
Now the regulations for special counsel are promulgated by the Department of Justice, which is an arm of the executive branch. This means that Mueller will issue his report to the DOJ rather than to elected representatives.
Bloch notes that this setup makes Mueller vulnerable. Theoretically, the DOJ can, at any point, change the regulations that give the special counsel his authority, shutting down the investigation. That hasn’t happened, the law professor says, because the outcry would be too severe.
But that doesn’t mean that the DOJ will necessarily release Mueller’s report. The regulations don’t require full disclosure. As such, the attorney general—or acting AG Matt Whitaker if Donald Trump’s nominee for the role, William Barr, isn’t confirmed by the time Mueller files—could refuse to share the special counsel’s findings with Congress or the public, or severely limit the extent of publication. That would be a stark contrast to the Starr report on Clinton, which was publicized in its entirety as soon as it was delivered to the House of Representatives.
On Jan. 28, Whitaker announced that Mueller’s investigation is “close to being completed.” The acting AG didn’t say when special counsel will file his report, but according to the Washington Post (paywall), a confrontation between Democrats and DOJ over just how much of special counsels’ findings will be shared is imminent.
No one knows what form Mueller’s confidential filing will take, or just how much of the investigation will be laid out in it. He’s required to explain who he investigated, why, what he discovered, any charges he filed, and the reasoning behind not charging others.
Trump claims that it’s entirely up to the AG what, if anything, the DOJ will share. Obviously, that’s a disconcerting notion for Democrats. During Barr’s Senate Judiciary Committee confirmation hearings in January, Democratic senators sought some guarantee that the nominee will let Mueller complete his work if confirmed as attorney general, and that he’ll release the special counsel’s findings.
Barr tried to reassure the senators, but he didn’t quite promise to publicize Mueller’s work. He said last month that he wouldn’t let politics interfere with justice. Yet Barr also wrote an unsolicited 20-page legal memo in 2017 for Trump, explaining why the special counsel’s investigation was illegitimate from a legal perspective. In it, he stated (pdf) that “Mueller’s obstruction theory is fatally misconceived.”
So Barr isn’t perceived as particularly neutral, and doesn’t seem entirely committed to the investigation. Still, he did testify that the attorney general is responsible for reporting “certain information” to Congress and that, if confirmed, he’d release special counsel’s filing “consistent with regulations.”
If Mueller’s report does find that the president committed an impeachable offense, and if the DOJ turns the matter over to Congress, the next steps will depend on the House Judiciary Committee. The committee in this context is acting like a prosecutor. Members of the committee can then conduct their own investigation and, when that’s complete, vote on whether to proceed on various articles of impeachment—essentially, charges.
If a simple majority (at least 51%) of committee members vote to charge, the articles of impeachment are presented to the full House. Again, a simple majority is all that’s needed to move forward to trial.
Impeachment lets the government investigate and remove corrupt officials. But there’s no list detailing precisely which offenses qualify for this process. For example, the founding fathers discussed and discarded the term “maladministration”—James Madison thought it was too vague. They ended up providing the following general standard in Article II, section 4, of the Constitution:
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
Since 1787, debate about what exactly counts as impeachable hasn’t abated. It’s still not obvious. But legal scholars do generally agree that misdemeanor in this context doesn’t refer to petty offenses in the criminal law sense. Instead, any kind of serious malfeasance that interferes with presidential duties and endangers the nation might qualify.
According to Bloch, a president doesn’t have to do something technically illegal to be impeached. An impeachable offense is one that imperils the country; it could arguably include dereliction of duties to play golf all day, say. On the flip side, a president could engage in acts that would be prosecuted criminally and remain in office nonetheless, so long as the offenses didn’t interfere with his work or imperil national security. “Impeachment isn’t criminal law,” Bloch explains. “It’s a political remedy.”
The legal scholar argues that impeachment exists to protect the country. It’s not as much a punishment for the president as it is a defense for the nation. Presidents can be criminally prosecuted for offenses after they leave office, and Bloch feels strongly that impeachment should never be undertaken as a purely symbolic measure—it should only be done when the intention is to remove the president after a trial.
This was not the case during the Clinton administration. The president was impeached but not removed, and Bloch was critical of several representatives in the House who in 1998 voted to impeach simply to brand the president with a scarlet letter, all while stating that they didn’t believe he should be removed from office for lies related to his extramarital sexual liaison.
But when it comes to Trump, it’s much more clear that his removal would be required if he was found to have conspired with Russian authorities to win the US election or traded favors in exchange for aid, as some allege. If the president engaged in a conspiracy to violate the Constitution, there would be no question as to the impeachability of this offense, Bloch contends.
Technically, impeachment occurs in the House of Representatives. But the Senate votes on the articles of impeachment presented by the House, acting like a grand jury, and the decision to remove the president lies with senators.
The chief justice of the Supreme Court presides over the trial proceedings, but his role is minimal. “He acts like a traffic court judge, basically,” Bloch explains, making evidentiary rulings and deciding on motions, objections, and the admissibility of evidence but not the substance of the case. The only reason that the judiciary is involved at all, the professor notes, is because normally a vice president presides over such a hearing in the Senate. But when the president is the person on trial, and the vice president is the person who would replace him if removed, there’s a conflict of interest that makes this role problematic.
Senators ultimately vote on the articles of impeachment after the hearing on the evidence is presented. If two-thirds of the senate is convinced of guilt, then their votes remove the president. Otherwise, he remains in office, despite impeachment. Assuming a conviction, which has never happened, the Supreme Court could hear a presidential appeal; the chief justice would be recused and the proceedings would be reviewed. No one’s gotten anywhere near that far along in the process so far.
The president can also resign in exchange for, say, a vice presidential pardon. Still, the long arm of the law will follow. A pardon from the vice president would only apply to federal crimes, and surviving removal proceedings doesn’t guarantee that the executive is free from woes either. Once out of office, Bloch notes, he can still be charged and convicted of crimes related to a special counsel’s investigation and face all the attendant penalties, including fines and prison time.
In Trump’s case, he’s already under investigation in New York by both state and federal authorities, and Mueller has indicated that he’ll hand over aspects of his investigation to the appropriate local prosecutorial bodies once his report is filed. Given the gravity of the president’s alleged offenses, whether or not Mueller’s report is publicized or impeachment proceedings happen, Bloch predicts that after his stint in the White House, Trump could spend time locked up.