Sen. Kyrsten Sinema betrays her constitutional duty on impeachment

Kyrsten Sinema never fails to disappoint me. Her latest insult to the intelligence of her constituents is in the Arizona Republic today. Kyrsten Sinema still hasn’t finished reading Mueller report, but says ‘no’ to impeachment:

Sen. Kyrsten Sinema does not support pursuing impeachment proceedings against President Donald Trump in the wake of the release of [Attorney General William Barr’s redcated version of] Special Counsel Robert Mueller’s report, which documented repeated actions by Trump to derail the two-year investigation into Russian interference and obstruction of justice.

The 448-page redacted report concluded there was no collusion between Trump’s 2016 presidential campaign and Russia but found insufficient evidence on the question of obstruction of justice [factually incorrect – “Baghdad Bill” Barr made this determination] but did not exonerate Trump. Instead, the report detailed the president’s numerous attempts to thwart the investigation.

Sinema said she is still reading the public version of the Mueller report, which was released more than a week ago, on April 18. The day it was released, Sinema said she wanted to read it before commenting.

She will get a classified version of the report when she returns to Washington, D.C., next week, after the Easter recess.

“I want to read all the information I can get before making a determination” on her views of the report, she said Thursday.

Asked Thursday by The Arizona Republic if she would support impeachment proceedings, Sinema responded, “No.”

Asked to explain her position, she said, “Everyone knows.”

Sinema did not elaborate; her spokeswoman later declined to elaborate and referred the newspaper to a previous statement from June 2018. That statement did not explain why Sinema opposes taking up impeachment proceedings.

I know. It’s called situational ethics. Polling out this week suggests that the public is not yet ready to support impeachment before there has been any public hearings of the witnesses and the evidence. Sinema puts her finger to the air to decide which way the wind is blowing at any given moment. It’s always what is best for Kyrsten’s political career.

You owe a constitutional duty, senator. To announce your verdict before you have even reviewed all the evidence or heard from any witnesses is a betrayal of that solemn duty. I suggest that history will judge you harshly. (That goes double for Sen. Martha McSally).

As someone who has read the redacted report, twice, and who is intimately familiar with all of the publicly available information referenced in the report — I have done deep-dive analyses here for the past two years that you can review — let me make a recommendation to you senator: read the report, and for good measure, read it again. The only conclusion you can come to is that Donald Trump has obstructed justice, and is deeply compromised by the Russians, requiring Congress to impeach him and to remove him from office.

Don’t be shooting your mouth off that you are opposed to impeachment before you have even read the report, and before there has been any public hearings of the witnesses and the evidence. Your constituents demand more from you.

I also recommend that you listen to people far smarter and wiser than you in constitutional and legal issues on the matter of impeachment.

Danielle Allen, a political theorist at Harvard University explains What Alexander Hamilton would say about the Mueller report and concludes:

Where does this leave us? Congress has the power and responsibility to act. Congress should consider as one of its highest priorities reclaiming its powers, after decades of its decline in the wake of executive overreach. And it should come to a judgment about the legality and faithfulness of President Trump’s behavior. Political considerations should not outweigh constitutional responsibilities. In that regard, we face the delicate and important circumstance of personal responsibility not only as it pertains to our chief executive but also as it applies to all our representatives.

At the end of the day, the health of our democracy stands or falls on whether we can maintain our personal responsibilities to the Constitution.

Preeminent constitutional law expert and the author of a book on impeachment, Laurence Tribe, writes I’ve warned that impeachment talk is dangerous, but the time has come:

In its extensive discussion of the constitutional issues implicated by special counsel Robert Mueller’s 22-month investigation, the report asserts that Congress has the authority to apply law “to all persons —  including the president.”

Specifically, Congress may “protect its own legislative functions against corrupt efforts designed to impede legitimate fact-gathering and lawmaking efforts.” The authority to prohibit a president’s corrupt use of power, the report finds, is essential to “our constitutional system of checks and balances and the principle that no person is above the law.”

The report declines to reach a judgment on whether the president has committed a crime because Mueller views himself as bound by Department of Justice policy against indicting a sitting president. This does not mean that the president has not committed a crime.  Indeed, Mueller’s refusal to reach a judgment is based partly on principles of fairness to the president: While people accused of a crime usually have the opportunity to give their story at trial, in this case, when no charges can be brought, the accused has no opportunity to clear his name.  Mueller pointedly notes that the sitting president’s immunity, however, would not preclude prosecution “once the president’s term is over or he is otherwise removed from office” — that is, impeached.

In these passages, Mueller invites Congress to take action, either through impeachment or by exposing a disgraced but politically acquitted Trump to criminal prosecution after he is no longer president — so long as that time comes within the for obstruction.

I have written about the dangers of impeachment talk. The consequential and divisive decision to impeach is not to be taken lightly, ought not be used as a tool of political convenience, and should be avoided until the dangers of holding back exceed the dangers of proceeding. With the arrival of Mueller’s damning report, however, the time has now come.

* * *

Congress must uncover the full facts of Russia’s interference in the 2016 election, the ways in which that interference is continuing in anticipation of 2020, and the full story of how the president and his team welcomed, benefited from, repaid, and obstructed lawful investigation into that interference and the president’s cooperation with it. Equally important, Congress must seize this opportunity, while the report remains a locus of national attention, for the American public to see and hear for itself the firsthand witnesses to the president’s criminal behavior, and to weigh and rally around an appropriate path forward — as they did in the wake of Watergate.

Mueller’s report has in no way cleared the president of grave wrongdoing. It would be a lie to claim otherwise, as Barr and Trump repeatedly have done. The report takes pains to note that the investigation could not establish wrongdoing under the strict framework of conspiracy law, but it declines to draw a conclusion on the existence of collusion, which “is not a specific offense or theory” under U.S. law.

Further, Mueller does not mince words about the president’s potential obstruction of justice, stating: “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. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”

Framers created impeachment for this moment

Congress has a duty to provide a beacon of principle and democratic values to the American people. It must pick up the baton that Mueller has offered and come to a judgment of its own, with the understanding that conduct that falls short of criminal conspiracy may nonetheless be impeachable. Consider, for instance, candidate Trump’s public call for the help of the Russian state in defeating Hillary Clinton — met within hours, the special counsel charged, by Russian attempts to hack domainsused by her campaign and personal office. Read together with Mueller’s report, this incident exposes the welcome that Trump and his circle extended to foreign support in manipulating the U.S. electorate. This behavior, whether called “collusion” or something else, is exactly the kind of conduct the Framers had in mind when they created procedures for impeachment.

The report is unequivocal in concluding that even if Trump is criminally innocent of obstruction, it is not for lack of trying. The main reason the investigation wasn’t completely thwarted was not that the president didn’t “endeavor” to thwart it — the definition of — but rather that Trump’s subordinates refused to comply.

* * *

Postponing impeachment — even out of fear that a Republican-led Senate will fail to convict — no longer makes sense. Any such postponement would not only be unprincipled. It would also be politically shortsighted. To quote Shakespeare’s Brutus, “We must take the current when it serves, or lose our ventures.”

Elizabeth Drew, a Washington reporter who covered the impeachment of Richard Nixon and Bill Clinton, and wrote a book on Watergate writes: The Danger in Not Impeaching Trump (excerpt):

The principal challenge facing the Democrats is that they’ll have to answer to history. The founders put the impeachment clause in the Constitution to allow Congress to hold accountable, between elections, a president who’s abusing power. They specified that “high crimes and misdemeanors” are not necessarily crimes on the books but arise from the singular power of the presidency.

* * *

Many people are getting their history and their definition of impeachment wrong by asserting that what forced Nixon to resign was the revelation in August 1974, very late in the process, of a recording of his trying to obstruct justice. This leads them to the erroneous conclusion that it’s essential to find a “smoking gun” to impeach a president.

In fact, even before that tape was released, the House Judiciary Committee had already approved three articles of impeachment against Nixon. It was widely understood that opinion had moved so strongly against him that the House would approve those articles and the Senate would vote to convict Nixon on those grounds. The tape simply hastened the finale.

By far the most important article of impeachment approved by the House committee on a bipartisan basis was Article II, which called for the punishment of Nixon for abusing presidential power by using the executive agencies (such as the Internal Revenue Service) to punish his enemies and for failing to uphold the oath of office to “take care that the laws be faithfully executed.” It also said, significantly, that a president could be held accountable for a pattern of abusive or even illegal behavior by his aides.

Madison and Hamilton didn’t say anything about holding off on impeachment because it would be politically risky. It’s hard to imagine they’d put political convenience on the same footing as the security of the Constitution. And the Democrats who prefer to substitute the 2020 election for an impeachment fight don’t appear to have considered the implications if Mr. Trump were to win: Would that not condone his constitutional abuses and encourage his authoritarian instincts?

Moreover, the report by Robert Mueller, the special counsel, left clear openings, perhaps even obligations, for Congress to act. Mr. Mueller did not say that there had been no collusion, or conspiracy, or whatever between Russian oligarchs and intelligence agents with ties to the Kremlin and members of the Trump campaign — in fact he traced the considerable traffic, or what he called “links” and “contacts,” between them in some detail. But he wrote that he couldn’t “establish” coordination between the Trump campaign and the “Russian government.” In his view, to win a court case, he had to prove some sort of specific agreement between the Trump campaign and that government.

While Mr. Mueller cited 10 likely instances of obstruction of justice on the president’s part, he said he stopped short of charging Mr. Trump with that crime largely because of a Justice Department rule that’s not law but is taken as Holy Writ. Mr. Mueller even invited Congress to address the matter. Almost as a plea, he added that “no person is above the law.”

The Democrats may succeed in avoiding a tumultuous, divisive fight over impeachment now. But if they choose to ignore clear abuses of the Constitution, they’ll also turn a blind eye to the precedent they’re setting and how feckless they’ll look in history.

Finally, Hillary Clinton, who served as staff counsel to the Watergate impeachment committee and later lived through her husband’s impeachment writes, Hillary Clinton: Mueller documented a serious crime against all Americans. Here’s how to respond.

Our election was corrupted, our democracy assaulted, our sovereignty and security violated. This is the definitive conclusion of special counsel Robert S. Mueller III’s report. It documents a serious crime against the American people.

The debate about how to respond to Russia’s “sweeping and systematic” attack — and how to hold President Trump accountable for obstructing the investigation and possibly breaking the law — has been reduced to a false choice: immediate impeachment or nothing. History suggests there’s a better way to think about the choices ahead.

* * *

First, like in any time our nation is threatened, we have to remember that this is bigger than politics. What our country needs now is clear-eyed patriotism, not reflexive partisanship. Whether they like it or not, Republicans in Congress share the constitutional responsibility to protect the country. Mueller’s report leaves many unanswered questions — in part because of Attorney General William P. Barr’s redactions and obfuscations. But it is a road map. It’s up to members of both parties to see where that road map leads — to the eventual filing of articles of impeachment, or not. Either way, the nation’s interests will be best served by putting party and political considerations aside and being deliberate, fair and fearless.

Second, Congress should hold substantive hearings that build on the Mueller report and fill in its gaps, not jump straight to an up-or-down vote on impeachment. In 1998, the Republican-led House rushed to judgment. That was a mistake then and would be a mistake now.

Watergate offers a better precedent. Then, as now, there was an investigation that found evidence of corruption and a coverup. It was complemented by public hearings conducted by a Senate select committee, which insisted that executive privilege could not be used to shield criminal conduct and compelled White House aides to testify. The televised hearings added to the factual record and, crucially, helped the public understand the facts in a way that no dense legal report could. Similar hearings with Mueller, former White House counsel Donald McGahn and other key witnesses could do the same today.

* * *

Third, Congress can’t forget that the issue today is not just the president’s possible obstruction of justice — it’s also our national security. After 9/11, Congress established an independent, bipartisan commission to recommend steps that would help guard against future attacks. We need a similar commission today to help protect our elections. This is necessary because the president of the United States has proved himself unwilling to defend our nation from a clear and present danger. It was just reported that Trump’s recently departed secretary of homeland security tried to prioritize election security because of concerns about continued interference in 2020 and was told by the acting White House chief of staff not to bring it up in front of the president. [See Kirstjen Nielsen Was Instructed Not to Talk to Trump About Russia Targeting the 2020 Elections.] This is the latest example of an administration that refuses to take even the most minimal, common-sense steps to prevent future attacks and counter ongoing threats to our nation.

Fourth, while House Democrats pursue these efforts, they also should stay focused on the sensible agenda that voters demanded in the midterms, from protecting health care to investing in infrastructure … For today’s Democrats, it’s not only possible to move forward on multiple fronts at the same time, it’s essential … It’s critical to remind the American people that Democrats are in the solutions business and can walk and chew gum at the same time.

We have to get this right. The Mueller report isn’t just a reckoning about our recent history; it’s also a warning about the future. Unless checked, the Russians will interfere again in 2020, and possibly other adversaries, such as China or North Korea, will as well. This is an urgent threat. Nobody but Americans should be able to decide America’s future. And, unless he’s held accountable, the president may show even more disregard for the laws of the land and the obligations of his office. He will likely redouble his efforts to advance Putin’s agenda, including rolling back sanctions, weakening NATO and undermining the European Union.

Of all the lessons from our history, the one that’s most important may be that each of us has a vital role to play as citizens. A crime was committed against all Americans, and all Americans should demand action and accountability. Our founders envisioned the danger we face today and designed a system to meet it. Now it’s up to us to prove the wisdom of our Constitution, the resilience of our democracy and the strength of our nation.

Do your duty, Senator Sinema.