Another Look at Impeachment, After the Mueller Report
Among the many oddities in the second episode of the new (and final) season of “Game of Thrones,” none was odder than the disproportion of time spent combating a desperate existential threat versus time spent arguing over the demands of dynastic primacy. After spending approximately thirty seconds on an actual plan to defeat the Night King and his icy undead army (and a terrible plan it was: Bran, you hang out around the old tree and try to catch the king in some kind of mind-meld, and we’ll have the P.T.S.D. victim Theon Greyjoy mind you as you do), far more time was spent on whether a single, and single-handed, knight, Jaime Lannister, might be an acceptable ally to the Stark-Targaryen clans. Accused by Daenerys of having been the kingslayer of her father, and therefore the guy against whom she had sworn vengeance, Lannister gave a strange response. One expected him to say, “Look, your dad was called the Mad King for a reason. He burned people alive and was a threat to existence and decency, no matter what his last name, or what house he belonged to. One thing I’ll never feel ashamed about is helping to expel that lunatic.” Instead, he spoke the language of dynastic squabbling—insisting that he had acted only on behalf of his house and his family—and (in a horrible bit of anachronistic dialogue) got the imposing Brienne of Tarth to say that she would “vouch” for him.
The eloquent relevance of this scene to our current real-world predicament is obvious: too much of the discussion of what to do about an unhinged monarch turns on a modern version of dynastic squabbles—on party politics, on who will do well or badly, on how it will play out for Democrats in the 2020 election, on what it will do to the Republican base, and so on. This squabbling seems, in light of the release of the special counsel Robert Mueller’s report, irrelevant and even kind of frivolous. What the report reveals is what we sensed but could not entirely know: that Donald Trump has contempt not just for the rule of law but for the idea of law. He is a man who rose to power knowing only loyalty and subservience as acceptable institutional attitudes; a man who, according to the report, asked the White House counsel to “do crazy shit” and then asked him to lie about it; a man who repeatedly tried to obstruct not just an investigation into what he or his campaign might have done but the whole idea of an investigation into Russian interference in the 2016 election. Those who predicted that Trump was not just another right-wing politician but an opponent of liberal democracy grow chill watching him assert the position—one that was not long ago as unacceptable to Americans as the idea of commending a foreign autocrat’s attempts to subvert our elections—that the Department of Justice should now pursue his political opponents for nonexistent crimes.
That the scale of the danger Trump poses is becoming clearer to more and more people is due to the paradoxical truth that, despite Trump’s endless claims to the contrary, the Mueller report is the least witch-hunt-like witch hunt in the history of witch hunts. Painfully, dutifully, at times in ways almost unduly dainty, the report works its way through the intricacies of its charge, of Department of Justice standards and practices, of what it can fairly conclude, and of what can’t be legitimately pursued. It does so with a sober judiciousness that would be wonderful to read if one were not a little haunted by the fact that not all special prosecutors or independent counsels have previously shown so much delicacy of mind. One recalls that hit of yesteryear, the Starr Report, written, as seemed evident at the time and still more so now, with the sole political purpose of humiliating President Bill Clinton into resigning, even though its own initial charge—to investigate the Whitewater land deal—left it with insufficient evidence to indict.
The finding of the Mueller report, ably occluded by Attorney General William Barr, isn’t that there was no collusion and no obstruction—it’s that there isn’t enough evidence to rise to the legal level of conspiracy, and that obstruction was not a charge that the office was permitted to pursue, in any case, because Trump is a sitting President. And then that—a rather convoluted piece of reasoning—the accusation cannot be unambiguously stated even if it is true, since it is also against the rules to accuse of a crime someone who can’t defend himself in court. The actual point of view of the authors, though, is made clear in their repeated, and rather ornate, return to an otherwise bafflingly opaque formula: if we could conclude that the President was exonerated of the charge of obstruction we would say so, but we can’t. In cash-value, or real-world, terms, they are saying that they can’t properly say that they found obstruction, but they did find a lot of evidence and are passing it along to those who might be allowed to act on it. It’s a heavy hint in the form of a labyrinthine legal argument.
It may be that, in retrospect, the Mueller investigation will be seen to have been unduly cautious. The failure to subpoena Jared Kushner and Donald Trump, Jr., is puzzling. So, too, is the larger failure to compel the President to be interviewed in person, given the almost aggressive absence of responsiveness in his written answers. This seems particularly evident considering that the independent counsel Kenneth Starr’s team had no compunctions about subpoenaing Bill Clinton to testify, despite the more trivial nature of its initial charge. (They withdrew it after Clinton agreed to testify.)
But, on the whole, and taken on its own terms, the Mueller report is a powerful and positive document, because it is written testimony to the liberal faith in the power of rules and systems to bring order and justice. Mueller and his team were trying on every page of the report and in every instance to follow the rules, even if the rules they were following forced them into contorted prose and easily misrepresented positions. The rules are worth following, the underlying premise of the report insists, because only in accepting the rules can we ensure justice. This is why the language of “norms” and their violation is misapplied to Trump and his conduct. What is at stake here are not “norms,” in the sense of ornamental ritual regularities in the conduct of office. What is at stake are rules—rules meant to ensure objective judgment and fair dealing no matter who the subject may be or how you may feel about his or her conduct. These are fair-minded rules put in place by the painfully slow accession of power to procedure, equitable rules put in place over time and that, historically, remain vanishingly rare. As “Game of Thrones” reminds us—it may be the chief reason for the show’s current appeal—the rule of pure power asserting itself exactly as it likes whenever it likes is what most often happens among human beings.
This is why the idea that Mueller cleverly engineered his report to force Congress to act misses the point. Mueller didn’t intend it. The rules did. This is why impeachment—at least attempting to remove from power someone obviously unfit to hold it, whatever the outcome may be—has, within a week, passed from a distant speculative possibility to what seems to many like a primary moral duty. It is being miscast as a prudential act, or even as an act of overdue partisan aggression. Right now, it seems more like collective self-defense against a common danger.