The real Mueller scandal

Eric Boehm:

If either major political party in American politics cared an iota about limiting executive power—and preventing the abuses that inevitably spring from such nearly unlimited power—Thursday’s release of a redacted version of Special Council Robert Mueller’s report would probably be the end of the Trump presidency.

Whether that end came via impeachment or through a Nixonesque forced resignation following a collapse of public and congressional support, it doesn’t really matter. In a normal political environment, the Mueller report would have been a damning, un-survivable bombshell for the administration—even without the special counsel finding evidence of collusion with Russia or choosing to bring charges of obstruction.

Instead, Trump will survive Mueller’s report (and has even declared victory) in the same way he survived every other major scandal—from the Access Hollywood tape to Stormy Daniels—of his short political career. He’ll survive because partisan interests dictate that he must, and partisanship now rules everything.

“If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” the report says. Lacking that exonerating information, Mueller kicked the question of whether Trump committed obstruction—and therefore the corollary question of whether he should be impeached—to Congress. That’s the right thing to do, given that Department of Justice precedent states a sitting president cannot be charged with crimes and that impeachment is a fundamentally political, not legal, process.

What will Congress do with the Mueller report? Likely not much, beyond fundraising off of it.

Republicans have already circled the wagons around Trump. “If Bob Mueller in two-and-a-half years of investigation—which includes both the FBI and special prosecutor’s time—doesn’t bring charges, I don’t know how much longer we need to be talking about collusion and obstruction,” Rep. Mark Meadows (R–N.C.), chairman of the House Freedom Caucus and one of Trump’s closest congressional allies, told Politico. The ranking Republican on the House Oversight Committee, Rep. Jim Jordan (R–Ohio), said the Mueller report’s conclusions meant a “sad chapter of American history is behind us.” Would they be saying anything like that if a Democratic president the subject of Mueller’s report?

Meanwhile, House Majority Leader Nancy Pelosi (D–Calif.) has effectively ruled out impeachment. That makes sense too. Democrats have a strong short-term incentive to campaign against a weakened Trump in 2020.

But beyond those acute short-term interests, neither party has much of an interest in setting a precedent that could be used to limit presidential power in the future. It’s possible both that Trump did not commit a crime and that he ought to be removed from office, but setting that standard would hang a cloud over every chief executive to come—and both parties desire to wield the power of the presidency more than they fear what the other would do with it.

The result: Saving Trump’s presidency makes sense for both parties in Congress, even as it undeniably deals another blow to the legislature’s status as a co-equal branch of government.

Intense partisanship and the desire for power, in short, will save the president from the political reckoning he probably deserves.

To be fair to Trump, he did not create the current hyper-partisan environment—though he does contribute to it and benefit from it. It’s the same symbiotic relationship, nurtured by the media, that birthed Trump’s presidential aspirations, germinated them into reality, and (if the details of the report are to be believed) guided many of the president’s near-obstruction actions over the past two years.

Let’s be clear about the content of the Mueller report: Trump made multiple attempts to obstruct the investigation, only to be stopped from doing so by his own subordinates—often because they ignored or contradicted his explicit orders. “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests,” the report states.

As Reason‘s Peter Suderman put it: “The picture emerging from the report is one of a temperamental and inexperienced president whose managerial bumbling and self-destructive instincts are kept at least partly in check by more experienced staff.”

In doing so, Trump’s underlings may have saved him (and others in Trump’s inner circle) from prosecution or impeachment. But that does not excuse the actions of the president. In a less toxic political environment, Republicans might admit to themselves that the man residing in the White House often seems unfit for the job—and is clearly unable or unwilling to recognize and respect the constitutional and legal limits of his office.

Again, Trump is not to blame for expansive powers granted to the modern presidency. Congress and the White House have worked for decades to build the executive branch into the leviathan that it is today. Impeaching Trump or otherwise forcing him from office would not undo all those mistakes—even though, as Gene Healy has argued persuasively, a more robust use of impeachment over the past 200 years would have improved the nation’s political state, “given how many bastards and clowns we’ve been saddled with over the years.” If only we had a time machine.

Allowing Trump to skate would not only add to this legacy of congressional acquiescence to executive misbehavior. It would set the bar so high that no future president would likely ever qualify for removal—or at least we would certainly hope so.

The next time a president abuses his or her powers the way Trump has, the country might not be so lucky to have him or her surrounded by aides willing to ignore direct orders.

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