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Impeachment? Not so fast without missing element of criminal intent

The release of the report by special counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE has unleashed a furious debate within the Democratic Party over the need to commence impeachment proceedings against President TrumpDonald John TrumpTrump rages against '60 Minutes' for interview with Krebs Cornyn spox: Neera Tanden has 'no chance' of being confirmed as Biden's OMB pick Pa. lawmaker was informed of positive coronavirus test while meeting with Trump: report MORE. Mueller was anything but subtle in his pointed discussion of how Congress can deal with the “corrupt exercise of the powers of office” within “our constitutional system of checks and balances and the principle that no person is above the law.”

In writing those words, Mueller put Democrats in Congress in a more uncomfortable position than he did Trump. Indeed, Trump seems quite satisfied with defining victory as avoiding indictment. Democratic leaders want to appear eager to impeach without actually impeaching Trump. Mueller, however, triggered impeachment frenzy but left out a key element necessary to achieve it. That element is criminal intent.

A study by the conservative group Media Research Center found that impeachment was referenced on ABC, CBS, NBC, CNN, and MSNBC more than 300 times in the first 18 hours after the report was released, with CNN alone accounting for 148 times. Many Democratic members of Congress ran on impeachment during the 2018 midterm elections.

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As soon as they won the House, however, Democratic leaders such as Speaker Nancy PelosiNancy PelosiObama chief economist says Democrats should accept smaller coronavirus relief package if necessary The five biggest challenges facing President-elect Biden Democrats were united on top issues this Congress — but will it hold? MORE announced that impeachment was not on the agenda. That was viewed by some as a bait-and-switch. When House Majority Leader Steny HoyerSteny Hamilton HoyerDemocrats were united on top issues this Congress — but will it hold? Democrats face increasing pressure to back smaller COVID-19 stimulus Hoyer on Trump election challenges: 'I think this borders on treason' MORE referred to impeachment as “not worthwhile,” the resulting backlash forced him to backtrack. Others, such as Senator Elizabeth WarrenElizabeth WarrenInequality of student loan debt underscores possible Biden policy shift Thomas Piketty says pandemic is opportunity to address income inequality The Memo: Biden faces tough road on pledge to heal nation MORE, have called to open impeachment proceedings.

Such demands suffer from the same loose analysis that characterized the last two years of predictions of inevitable criminal charges against Trump. The problem is that some positive findings for Trump in the Mueller report would weigh heavily in an impeachment defense. Mueller has effectively cleared Trump and his 2016 campaign of collusion. While the report states that Russians clearly worked to elect Trump and that the Trump campaign viewed the release of hacked Democratic material by the Russians as beneficial, the investigation “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” Indeed, no American was indicted in the special counsel investigation for collusion, coordination or conspiracy.

The report also undermined the theory surrounding the firing of FBI Director James ComeyJames Brien ComeyCarter Page sues over surveillance related to Russia probe Top Republicans praise Trump's Flynn pardon The new marshmallow media in the Biden era MORE. That act, leading to the appointment of the special counsel, showed Trump in a distinctly bad light as blundering and blind to how it harmed his administration. However, Mueller found considerable evidence that Trump was motivated by his anger over the sheer refusal of Comey to state publicly what he was saying privately, which is that Trump was not a target of any investigation. Trump was dead wrong in his action, but Mueller detailed how the president felt Comey left his administration “under a cloud” by not telling the public what he was telling Congress.

Notably, Mueller also defused the “bombshell” story of the Trump Tower meeting. He confirmed that the meeting lasted only 20 minutes and was set up under the false promise of supplying evidence of criminal conduct by Hillary ClintonHillary Diane Rodham ClintonCornyn spox: Neera Tanden has 'no chance' of being confirmed as Biden's OMB pick Groups seek to get Black vote out for Democrats in Georgia runoffs Biden's political position is tougher than Trump's MORE and her campaign. Trump's son-in-law and White House adviser, Jared KushnerJared Corey KushnerThe Hill's Morning Report - Presented by the UAE Embassy in Washington, DC - COVID-19 fears surround Thanksgiving holiday Pompeo becomes first top US diplomat to visit Israeli settlement, labels boycotts anti-Semitic NYT's Bruni suggests Ivanka Trump, Kushner move to North Korea or Saudi Arabia MORE, left the meeting quickly after calling it a waste of time. The promoter who set up the meeting called it a “dumb” idea of a Russian client who had ruined his relationship with the Trump family.

The evidence indicates that Trump knew little or nothing about the meeting in advance. Mueller also described how Trump drafted his infamous statement about it with little knowledge of what occurred. Donald Trump Jr.Don John TrumpMost Republicans in new poll say they'd vote for Trump in 2024 President says Trump Jr. doing 'very well' after COVID-19 diagnosis Trump has not prepared a concession speech: report MORE said the meeting was primarily about adoptions and actually expressed concern that the statement should be qualified so as not to create a false impression that it was entirely about adoptions. Mueller painted the president as more clueless than conniving here.

Impeachment would have to focus on alleged obstruction, since Mueller did not find evidence of collusion. It is certainly true that you can obstruct an investigation that did not find a crime, but it is a difficult case to make. Despite Trump impressively counterpunching himself into an obstruction charge, the report does not establish a compelling criminal case for it. Indeed, Mueller explaining why he failed to come to a conclusion on it is one of the most unsupported and unconvincing parts of his report. The reason for that failure, however, could be as important as the element.

Some have tried to supply a rationale as a precursor to impeachment. Some have suggested Mueller was prevented from finding criminal conduct because of the Justice Department policy against indicting a sitting president. Yet that policy did not prevent Mueller from coming to a decision on collusion. Furthermore, Attorney General William BarrBill BarrNew DOJ rule could allow executions by electrocution, firing squad Clyburn: Biden falling short on naming Black figures to top posts Five federal inmates scheduled for execution before Inauguration Day MORE and Deputy Attorney General Rod RosensteinRod RosensteinTrump turns his ire toward Cabinet members Ex-deputy attorney general says Justice Dept. 'will ignore' Trump's threats against political rivals The Hill's Morning Report - Sponsored by Facebook - Trump's erratic tweets upend stimulus talks; COVID-19 spreads in White House MORE did reach a conclusion, so there was no barrier from the Justice Department. Mueller also never said he was told he could not reach a conclusion. He indicates the very opposite.

There also is speculation that Mueller failed to reach a conclusion because he did not agree with the narrower view of obstruction held by Barr. Such a disagreement on the elements of the crime was not the reason. Mueller articulated his standard and applied it. Despite identifying 10 troubling episodes that could be defined as acts of obstruction, he could not say with confidence that Trump acted with the requisite “corrupt intent.”

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Mueller found evidence of a “range of other possible personal motives animating” how Trump conducted himself, from anger over questioning the legitimacy of his electoral victory to how certain acts by him or his family could be viewed. Mueller concluded, while not determinative, “absence of such evidence bears upon” the intent of Trump “with respect to obstruction.” That is why the difference on the elements of obstruction ultimately was not the issue. It came down to corrupt intent.

The report is a mess on intent with an array of intents to choose from. Mueller found “substantial evidence” that Trump wanted to limit the scope of the investigation, but that is not necessarily intent. Importantly, Mueller described noncriminal motives for the baffling conduct of Trump. Usually, the absence of evidence of a corrupt intent is resolved in favor of the defendant; however, the special counsel may not have been so inclined after Trump refused to be interviewed on obstruction. If Mueller reached the same conclusion as on collusion, it would have rewarded Trump for his intransigence. There may be an element of comeuppance in declaring that, in the end, it was impossible to determine what Trump was thinking.

None of this produces a compelling case of prosecution, even when any noncriminal motivation or intent is acknowledged. Even the best grounds for obstructive intent with Trump seeking to fire Mueller, an order ignored by White House counsel, was justified by Trump as based on his fear of a conflict of interest. Since Mueller was not fired, we cannot know if Trump would have tried to block any new special counsel. But Trump ultimately did not stop the investigation. He could also claim, in his defense, that he simply wanted a neutral investigator, not someone who was interviewed to replace Comey and then appointed to investigate the firing of Comey.

Congress clearly has a legitimate interest to hold hearings on some of these issues. With Trump now calling some of the findings “fabricated” and “total bullshit,” he has again opened the door to further inquiry. Yet the inability of the special counsel to resolve the question of intent should weigh heavily on any decision of the Democratic leadership to move from investigation to impeachment. Like indictable acts, impeachable acts demand a showing of intent, not simply an array of possible intents.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified on the Bill ClintonWilliam (Bill) Jefferson ClintonOne-termers: What Trump can learn from Carter and Bush's re-election losses Biden's climate plans can cut emissions and also be good politics Trump says he'll leave White House if Biden declared winner of Electoral College MORE impeachment standard, represented former attorneys general in that litigation, and served as lead defense counsel in the last Senate impeachment trial.