After the release of the damning Mueller Report, the House of Representatives is faced with an important decision — the decision of whether to hold impeachment hearings. Special Counsel Robert Mueller is the most thorough and impartial fact-finder we could have asked for, and it is unlikely that Congressional investigations will shed more light for us on either Russian election interference or President Donald Trump’s efforts to obstruct justice. Mueller makes clear that, as a Department of Justice prosecutor, he is not in a position, legally or practically, to prosecute Trump on obstruction of justice. He writes that it’s Congress’s duty to ensure that no man is above the law. We can surmise that — but for Trump’s unique position as president — the mountain of obstruction evidence would have led him to be charged with a crime.
If we are constitutionalists and believe in the rule of law, the only available trial venue for presidential crime is Congress. Impeachment and removal are special prosecutorial components of the American justice system that lie outside the purview of the executive branch. The decision by the House of Representatives to hold impeachment hearings should be guided by the merits of the President’s alleged crimes, not partisan electoral considerations. Maybe it’s not ideal for Democrats’ 2020 electoral chances to pursue impeachment hearings, but the Constitution has set forth the guidelines for bringing a president to justice. We cannot follow the Constitution only when convenient. We cannot set a precedent that this president or future presidents won’t be brought to justice when one party fears losing a future election.
A declination to prosecute the president for criminal conduct out of partisan electoral considerations would be a disaster for our system of justice and the rule of law. A decision to prosecute the president based on a dislike of him or his policies rather than the merits of his alleged crimes would also erode the rule of law. In order to fulfill its duties, Congress must pursue justice based on facts and impartial assessments, just as Mueller did.
The reticence of the Democratic leaders of the House of Representatives to hold impeachment hearings is undergirded by a deceptively reasonable claim — let the voters judge Trump’s alleged crimes in a year and a half at the ballot box. This argument is dangerous for several reasons. First, it presumes that a presidential election can serve as substitute for Congress’s constitutional duties. It cannot. In 2018, we voted in a new Congress — sworn in a few months ago. There is no legitimate rationale for the new Congress to decline to fulfill its Constitutional mandate. Second, it is unreasonable to expect that voters will make their voting decisions in 2020 based exclusively on Trump’s alleged crimes. The 2020 election is not a trial venue. Voters are choosing the country’s leader for the next four years — they are not submitting a jury verdict on criminal charges. Third, House Democratic leaders seem to assume that if voters re-elect Trump, he earns a free pass for his past criminal activity. Offering Trump a path to avoid impeachment through re-election undermines our system of justice. The notion that politicians can evade prosecution for crimes if they are popular or win re-election exempts them from the rule of law applicable to every other American.
There are partisan political considerations swirling in the minds of Democrats today, but there are times when our leaders in Congress must do things that are right even when they are politically costly. There are moments in American history that demand courage. If Democrats make the decision on impeachment hearings based on election fears and not the merits of the crimes, we have only ourselves to blame for tearing up the Constitution. The House of Representatives’ abdication of duty would constitute a silent constitutional crisis — a moment in our history when the institutional mechanisms set forth by the Constitution spectacularly failed to uphold justice. The Constitution is sacred. The rule of law is bigger than one election. Our country is worth more than one election.
There are many Democrats who worry that holding impeachment hearings may doom us to four more years of bad Trump policies and even more presidential misconduct. Democrats must remember this — we can’t control his choices — we can only control ours. It’s in our hands whether to adhere to the Constitution and the rule of law — or not. I say we should. What Trump does in the future is his prerogative. The prospect of him committing future crimes shouldn’t allow him to evade justice for his past crimes. He may choose lawlessness. We should not.
Congress is full of partisan hacks, but there are some rare situations when the Constitution asks them to be more than that. This is one of those situations. The composition of the jury — in this case a Congress with many Republican members who carry water for Trump — should not dissuade Democrats from themselves doing the right thing. Let the Republicans put party above country if they so choose — we should not.
Naveed Amalfard is an incoming 1L student in the University of Virginia School of Law.
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