Robert Mueller, in response to a subpoena, will soon appear before Congress to answer questions about his investigation into Donald Trump and Russian election interference. In anticipation of this — and in the interests of lowering expectations — it is worth recalling that only a few weeks ago, after keeping his mouth closed for more than two years, Mueller appeared before the press — no questions allowed — to restate the conclusions within his report. There was hope, again, that Mueller might shock the system and explicitly call Trump out for the laws he has broken.
That hope, however, was quickly dashed when Mueller stuck to his script. Yes, Russian officials intervened in the election; yes, the matter of obstruction was fully scrutinized; but there was nothing he would do: “We concluded that we would — would not reach a determination one way or the other about whether the president committed a crime.” For good measure, he blew a kiss to Attorney General William Barr, saying he did “not question the attorney general’s good faith.” All in all, it was an artful statement, amenable to many interpretations, but made clear Mueller was not going to get involved in accusing Trump of crimes. He may be fine with someone else doing so, but it won’t be him. Given the jolt he could have delivered, Mueller’s performance was as restrained as it was infuriating.
Anyone understanding Mueller’s history ought not to have been surprised. He is a high-level bureaucrat known for fealty to the ruling structures he’s worked for. A man who served as FBI director for George W. Bush during the adoption of the repressive PATRIOT Act, who chimed in with his own support for the Iraq War of 2003, and commanded his people in the Bureau to stay away from the CIA’s torturing — not stop it mind you, just to stay away. When asked about this directive at a hearing in 2008, Mueller, careful to not use the word “torture,” allowed that there were certain CIA “activities that [we] were concerned might not be appropriate.” As for what he did about it as FBI director, he explained, “We would over a period of time say, ‘look we’ve noticed behavior that may be questionable’ and report it to the agency, that particular agency may be governed by legal opinions that are not applicable to us.” All of which sounds strikingly familiar to the rationale for his dodge in pursuing Trump. When it comes to bureaucratic politics, Robert Mueller is a careful man, if not a particularly brave one.
This leaves us with the problem of Donald Trump and whether he will ever face impeachment. While such a thing may be a long shot, it is worthwhile to look at how that legal instrument has been used in the past. In that respect, what is revealed is not a radical remedy delivering justice in the face of an out-of-control executive, but rather something akin to a safety break, allowing the political apparatus to navigate crisis, while keeping things within the safe boundaries of set laws and norms.
Impeachment’s Frail History
The U.S. Constitution is pretty straightforward on impeachment: “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.” With that kind of latitude, given how fraught the presidency is, one would think all types of malfeasance could have been remedied by this provision. Such is not the case.
The first time impeachment was successful was against Andrew Johnson, who took office after Abraham Lincoln’s assassination. The United States, which had gone to war to defeat a separatist insurrection of Southern states that wanted to preserve slavery, confronted in Johnson a president who wanted to accommodate the defeated South. Specifically, Johnson vetoed the Civil Rights Act of 1866, which had been passed to ensure the rights of those just freed from slavery. In a war that saw enormous sacrifice, including the deaths of 625,000 people (2 percent of the U.S. population), Johnson’s deference to the sensibilities of the treasonous Confederacy did not sit well with those in the political class that had fought so hard to win that war — against no small amount of internal opposition.
When Johnson then vetoed the Freedman’s Bureau Act that same year, which had been passed to give aid to freed slaves, he lost his remaining support among congressional Republicans. That, however, was not why he was impeached. Instead, the 11 articles brought against him largely revolved around his violating the Tenure of Office Act, which mandated at that time congressional approval for appointing and firing cabinet members — this in response to Johnson firing his secretary of defense, and Republican, Edwin Stanton.
In the end, Johnson was impeached in the House, but acquitted in the Senate by one vote. Had he been removed, it would largely have been for firing one of his cabinet members, not his efforts on behalf of the white supremacists in the South — who would go on to wreak havoc for another hundred years after a brief interlude of Reconstruction.
Fast forward a hundred or so years to Richard Nixon. Nixon was not impeached, though articles of such were drawn up and he likely would have been impeached had he not resigned. Those articles, however, were not for his continuing to wage a war in Vietnam — particularly his escalation of bombing including the “Christmas bombing” in December 1972, which saw 20,000 tons of bombs dropped on the country, leading to at least 1,600 Vietnamese deaths.
One gets a sense of Nixon’s ruthlessness in Vietnam when reading The New York Times from June 17, 1972. Tucked away on page six was an article reporting on the 340 airstrikes flown over Vietnam that day, along with the four B-52 raids (in addition to the B-52 raids carried out “every day for the last nine days”). The article, however, did not concern itself with the effects for people on the ground. For that we have Truong Nhu Tang, recalling in A Vietcong Memoir, “From a kilometer away, the sonic roar of the B-52 explosions tore eardrums, leaving many of the jungle dwellers permanently deaf…. Any hit within a half kilometer would collapse the walls of an unreinforced bunker, burying alive the people cowering inside.”
If the June 17 Times article stands out at all today, it is because it appeared the same day as the Watergate break-in — which is what got Nixon into impeachment trouble in the summer of 1974. The repercussion from the break-in was not, however, Nixon’s first brush with impeachment. That came in July 1973, when U.S. Representative and Jesuit priest Robert Drinan introduced an impeachment resolution based on Nixon’s bombing of Cambodia — a measure killed by the maneuvering of the Democratic Speaker of the House Tip O’Neill. As O’Neill later wrote, “Morally, Drinan had a good case…. But politically, he damn near blew it.” O’Neill was referring to the fact that there were not the votes at the moment for such a resolution, and once any impeachment measure was raised and defeated, it would likely doom a future effort. Things being what they are in Congress, practicality trumps morality pretty much every time. Impeachment is a conservative tool, and a conservative tool was not going to be used to end the Vietnam War.
Richard Nixon resigned in August 1974, and in turn, was given a full pardon by President Gerald Ford. And while Nixon’s larger lawlessness was a pronounced problem for his peers, he did not have to answer for Vietnam, preempting the opening of a Pandora’s box of culpability that would touch no small number of those in government for a period stretching back decades. Thus, today, when we talk about Nixon and impeachment, we don’t talk about Vietnam, let alone Chile. We talk about Watergate, a matter sitting comfortably within the acceptable framework for the ruling elites — that it is taboo to break into (and try to cover up) burglarizing the office of the opposition establishment party.
Then we come to Bill Clinton, impeached as a result of Republicans investigating him relentlessly until they finally hit gold. This is not to acquit Clinton for his treatment of women; there are truckloads of issues there to unload. But those pursuing him could not have cared less about Monica Lewinsky or Clinton lying about his relationship with her. They wanted to take down the Democratic president, which they did — impeaching him, though they failed in trying to remove him from office. Stripping off all the noise, the Clinton impeachment remains relevant especially because of the straight line it draws to the internecine fighting among the ruling elites still very much in play.
Republicans used impeachment as a means of extending their political power, while undermining that of the Democrats. While the willingness to shatter certain norms, starting with the Clinton impeachment, appears as a hallmark of Republicans in the current era, it is notable that Clinton faced no danger of being impeached for his role in perpetuating sanctions in Iraq that lead to an estimated 500,000 children dying; his bombing of a pharmaceutical plant wrongly thought to be making chemicals weapons in Sudan; or the human misery inflicted by his crime bill and proclaiming of the “end of welfare as we know it.”
It should be noted that while Clinton was impeached, George W. Bush and Dick Cheney — who violated the Geneva Convention with their policies of extraordinary rendition and torture, to say nothing of their lawless invasion of Iraq — never saw the inside of a courtroom, let alone the Senate Chamber for an impeachment trial. Instead, President Barack Obama, uniquely positioned to initiate accountability measures, declared, “We need to look forward as opposed to looking backwards,” pulling any such accounting off the table.
Then there is Donald Trump. If anyone deserves impeachment, it is him. He has worked very hard for it. He is on record for advocating sexual assault. He is accused of sexual assault, including a new charge this past week; inciting violence at his campaign rallies; separating immigrant children — including toddlers — from their parents; promoting anti-Semitism; defending racist demonstrators; and publicly calling on a foreign power to help him in his campaign for president. He has done many other things, but as they say, the hour is late and the day is short. What is remarkable, though, is that none of these things are in the running for even the long shot of impeachment. Instead, we have as the chief focus obstruction of justice. This is a classic example of the way in which impeachment is meant and used to maintain the bounds of the status quo: from Andrew Johnson’s reproach for violating the “Tenure of Office Act,” Nixon’s covering up a political break-in, to Clinton’s lying and impeding an investigation.
This brings us back to Robert Mueller. While Mueller has made clear he has no interest in being the guy to bring Trump down, there might be something in his report, or conceivably — unlikely as it is — something in his testimony which gets the impeachment train out of the station. That said, the current terms in place being what they are, along with the larger historical experience, it is clear there is a bedrock conservatism at the core of the impeachment process. Put simply, it is a process meant to preserve and facilitate the functioning of the U.S. government — and keep the terms of debate within manageable bounds. In that respect, expecting too much from it is hope misplaced. Impeachment may be a step toward pushing Trump out of the presidency, though as evidenced by previous impeachments, it may do nothing of the sort. But impeachment should not be mistaken for a route to true justice.