Democrats are debating a risky step that may immeasurably bolster their impeachment case but could multiply the political price for ramming it home.
Including elements of former special counsel Robert Mueller’s Russia report suggesting President Donald Trump was guilty of obstruction would help arguments he did exactly the same in the Ukraine investigation.
But reviving the controversy over the special counsel’s probe could blur the much clearer current abuse of power case and play into Trump’s claims that both Washington intrigues are all part of the same “hoax.”
Such an accusation would not be based in fact, but it would surely increase the exposure of swing state Democratic House members already facing an existential vote over impeachment.
Still, putting the nation through the trauma of impeaching a President partly for obstruction, and ignoring a detailed assessment of the repeated and high-level commission of the same offense would seem illogical. It would also be a missed opportunity for Democrats to indict the President before public opinion and lay down a marker for history.
House Speaker Nancy Pelosi declined to confirm that Mueller’s findings on obstruction would find their way into the impeachment charges against Trump during a CNN Town Hall on Thursday evening. But she made no attempt to rule out the idea.
“We are not writing the articles of impeachment here tonight,” she said.
The Mueller case on obstruction
Democrats warned in their report on the House Intelligence Committee’s Ukraine investigations that the President was engaged in an attempt to obstruct Congress of historic magnitude.
“The damage to our system of checks and balances, and to the balance of power within our three branches of government, will be long-lasting and potentially irrevocable if the President’s ability to stonewall Congress goes unchecked,” the report said.
Mueller laid out 10 possible examples of obstruction of justice in his report published earlier this year. They included Trump’s pressure on former FBI Director James Comey to end the investigation into ex-national security adviser Michael Flynn.
Perhaps the most well-known example of alleged obstruction was Trump’s dismissal of Comey and subsequent remark in an NBC interview that it was because of the Russia investigation.
Mueller did not offer a definitive conclusion on whether Trump committed the crime of obstruction. But he also did not exonerate him. And he pointedly mentioned that Congress had discretion to investigate and impeach a sitting president in commenting that “no person is above the law.”
Some Democrats believe that party leaders in the House should add the Mueller evidence into an article of impeachment accusing Trump of obstructing Congress by claiming “absolute immunity” and blocking key witness testimony and other evidence.
“I don’t know how you look at Volume 2 where Bob Mueller says there are 10 instances of obstruction of justice, a crime that would send every other American to jail … and say ‘yea, we just ought to let that slide.’” Democratic Rep Jim Himes, a Connecticut Democrat, told CNN’s Wolf Blitzer on “The Situation Room.”
Democrats are not considering bringing reams of Mueller’s evidence into the impeachment case based on Trump’s pressure on Ukraine. The aim would be to prove he has a habitual record of obstructing justice and investigations into his conduct.
“The argument here is not to include everything from the Mueller report but instead to select those few episodes related to obstruction of justice that demonstrated that the President had committed crimes, that he’d met all the elements of the statutory definition,” said CNN legal analyst Susan Hennessey.
One benefit of such a step would be to counter an emerging GOP narrative that there is not a sufficiently developed record of obstruction in the Ukraine saga.
“That is definitely not the case in the Mueller report,” Hennessey told Blitzer. “There is a very, very developed record.”
Democrats appear ready to expand the case
Democrats provoked fresh speculation that they were moving towards admitting some Mueller evidence by scheduling a Judiciary Committee hearing for Monday with staffers from two committees: Intelligence, which investigated the Ukraine scandal, and Judiciary, which dealt with allegations of obstruction in the Mueller report.
This followed comments by House Judiciary Committee Chairman Jerry Nadler, a New York Democrat, that could be taken as a hint that Democrats were examining the Mueller option.
“President Trump welcomed foreign interference in the 2016 election. He demanded it for the 2020 election,” Nadler said in his committee’s opening impeachment hearing on Wednesday.
“In both cases, he got caught. And in both cases, he did everything in his power to prevent the American people from learning the truth about his conduct.”
But in a situation as emotionally and politically fraught as an impeachment, confronting each action can provoke a politically damaging counter-reaction.
Democrats who wanted to initiate impeachment proceedings against Trump after the release of the Mueller report failed to convince a critical mass of their own leadership that the case was sufficiently clear to the American people.
That was one reason why Pelosi held out so long against rising pressure in her own caucus for an effort to oust the President, amid fears of a political backlash.
In the CNN town hall, the speaker suggested that the Ukraine case was far more black and white.
“It wasn’t so clear to the public,” Pelosi said, referring to Mueller’s findings. “The Ukraine (situation) has removed all doubt, it was self-evident that the President undermined our national security, jeopardized the integrity of our election as he violated the oath of office.”
The President and his supporters, perpetrating a massive disinformation campaign to create uncertainty and ambiguity about the Ukraine case, has been trying to brand it as an extension of the Mueller saga.
Folding in the special counsel’s evidence could help do his work for him.
For instance, in the first televised House Intelligence Committee hearing last month, the panel’s top Republican, Rep. Devin Nunes, told witnesses: “the main performance — the Russia hoax — has ended, and you’ve been cast in the low-rent Ukrainian sequel.”
There is some squeamishness amongst some Democratic lawmakers about the prospect of referencing Mueller in the articles of impeachment — factors Pelosi and her top committee chairs must weigh as the mull next steps this weekend.
“I was opposed to this previous to Ukraine — be cognizant of that,” said freshman Rep Max Rose, saying he would read the eventual articles of impeachment before deciding what to do.
CNN’s Manu Raju contributed to this report.