Here are the constitutional options after the Trump Russia investigation
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Our country is deeply divided, injured by wounds in urgent need of careful attention. Fortunately, our constitutional system provides the tools needed for triage and healing, albeit not without some predictable pain. My purpose here is to examine the various legal processes we have available to help us in this looming crisis. But a word of warning: while the constitutional mechanisms are sufficient, they can be slow and, at times, frustrating, requiring a collective measure of patience and understanding.

Let’s consider some of the most serious allegations casting a shadow over the current administration. First, there was the Russian meddling in our 2016 election and potential collusion by the Trump campaign, including newly discovered information alleging Jared Kushner attempted to establish a “back channel” with Russia. There was also General Michael Flynn’s alleged involvement with Russia and Turkey.

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Then, the Trump administration hired Flynn, despite knowing that he was under investigation. Since his election, President Trump reportedly revealed classified information to the Russians in the Oval Office. He also fired FBI Director James Comey, raising the possibility of obstruction of justice.

 

When it comes to investigating these alleged wrongdoings, there are a number of actors with a variety of legal tools at their disposal. Once these investigations produce outcomes, our leaders may look to constitutional mechanisms to decide what comes next. Here are the key players to watch.

Special Counsel Robert Mueller

Robert Mueller was appointed by Deputy Attorney General Rod Rosenstein, under regulations adopted in 1999 after Congress deliberately let the statutory scheme that gave us Ken Starr expire. Under the regulations governing the appointment of the special counsel, Mueller can be fired by Rosenstein for “good cause.” Indeed, President Trump has the power to order Rosenstein to fire Mueller.

As special counsel, Mueller’s powers are extensive. He can subpoena witnesses, grant immunity, and subpoena documents. Most importantly, he can indict individuals, although probably not the president. The question of whether a sitting president can be indicted is much mooted, but not decided.

Indeed, in 1998, then-Sen. John Ashcroft (R-Mo.) held hearings in which I, and other constitutional law professors, testified that a sitting president cannot be indicted. And, in fact, no sitting president has ever been indicted. The closest we came to that was when President Nixon was named as an “unindicted co-conspirator” in the Watergate trials.

Whether or not Special Counsel Mueller brings indictments, he must, at the conclusion of his investigation, write a report. If he concludes that President Trump has committed an indictable offense, but believes that a sitting president cannot or should not be indicted, his report will lay out the information upon which the House of Representatives may decide to impeach the president.

The grounds for impeachment are the commission of “bribery, treason, or other high crimes or misdemeanors.” Obstruction of justice is generally considered to be a “high crime or misdemeanor.” Indeed, the articles of impeachment against both President Nixon and President Clinton included “obstruction of justice.”

House of Representatives Intelligence Committee

This is a bipartisan committee, with 13 Republicans and nine Democrats. It can subpoena documents and testimony. It can grant immunity from congressional sanctions. But it cannot bring criminal charges. Its principal goal is to design systems to avoid future interference with our electoral process. If it finds evidence of impeachable offenses, it will refer the matter to the House Judiciary Committee.

Senate Intelligence Committee

This, too, is a bipartisan committee with eight Republicans and seven Democrats. It can investigate, but cannot bring criminal charges. It too is looking forward to see how to prevent these alleged foreign interferences in the future. The committee cannot bring impeachment charges, but can give its findings to the House of Representatives to allow the House to begin impeachment proceedings.

Impeachment process players

The House Judiciary Committee is the only body that can begin the impeachment process. Its principal function in this process is to investigate and propose articles of impeachment. If the committee adopts articles of impeachment, the articles are sent to the full House. If the House of Representatives, by a majority vote, adopts articles of impeachment to impeach the president, the proceeding moves to the Senate for a trial.

That means, according to the Constitution, there is a trial in the Senate presided over by the chief justice of the United States Supreme Court, currently Chief Justice John Roberts. If, after a trial, two-thirds of the Senators vote to convict the president on any or all of the articles of impeachment, the president is removed from office immediately. The vice president, Mike PenceMichael (Mike) Richard PenceDems face close polls in must-win Virginia Report: Trump administration officials urged furious Tillerson not to quit Authorities recover 47 firearms in connection with Las Vegas shooter MORE in this case, automatically becomes the new president.

Our country has never removed a president, but we have come close three times. We have impeached two presidents — Andrew Johnson and Bill ClintonBill ClintonAll five living former presidents to attend hurricane relief concert The Hill's 12:30 Report The Hill's 12:30 Report MORE — and almost impeached Richard Nixon, but he resigned before the actual vote in the House of Representatives took place. The two impeached presidents went to trial before the Senate but both were acquitted. In both Johnson’s and Clinton’s cases, the Senate failed to reach the two-thirds vote required to remove the president.

Our Founders deliberately rejected a parliamentary system where a simple no-confidence vote by a Parliament can bring a leader down and initiate, virtually immediately, a new election. Instead, the Founders created a system in which the President is elected for a four-year term. Mere lack of confidence in a president is not sufficient to trigger a new choice. In our system, a president can be removed from office only if he or she has been tried and convicted by the Congress of “treason, bribery, or other high crimes or misdemeanors.”

While we can debate the exact meaning of those terms, all agree the bar was set deliberately high. Impeachment and conviction of a president undoes an election. It, therefore, should be used only as a last resort. But, if the president has undermined our democracy, possibly with the aid of the Russians, our Constitution provides the requisite remedy.

The constitutional road ahead

The public investigation continues Thursday, when fired FBI Director Comey will testify before the Senate Intelligence Committee, which is investigating possible efforts by President Trump to obstruct justice and to curtail investigations into Russian interference with our election.

We need to keep several facts in mind as we embark on our efforts to cleanse our wounds and begin the healing process. As the rhetoric surrounding the various charges and countercharges flows, heavily laced with the jargon of battle and warfare, we must be careful to exercise patience and prudence, produce reliable answers, respect the constitutional resolution, and move forward together. Lancing boils is never easy or pleasant, but it is always necessary.

Susan Low Bloch is a professor at Georgetown Law. She testified on what is an impeachable offense before the House Judiciary Committee in 1998. She also testified before the Senate on whether a sitting president can be indicted and tried. An expert in constitutional law, she recently updated her 2000 article, A Report Card on the Impeachment: Judging the Institutions That Judged President Clinton, from a post-9/11 perspective.


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