Was Trump’s criticism of Sessions for permitting indictments of Republican House members a high crime or misdemeanor?

The tweet in question:

(1)    “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff…..”

The following, I take it, would clearly be impeachable:

(2)    “I direct the Justice Department not to indict any sitting Republican Member of the House close to election time.”

This would be a classic abuse of state power, the home ground of the high crime or misdemeanor concept. What would not have been impeachable would be:

(3)    “It saddens me that two popular Republican Congressmen were charged by United States Attorneys so close to the election, but, of course, the Justice Department must always stand above political partisanship.”

Or:

(4)    “The indictment of two popular Republican Congressmen may have been the result of the misconduct of Deep State Agents in the respective US Attorney’s offices. If it was, Jeff Sessions should have stopped them.”

There is a hint of (4) in (1)’s recitation that the charges resulted from “long running, Obama era, investigations.”  (1) is also, clearly enough, an expression of Trump’s disappointment that two “easy wins” for his party have been put into doubt. There is nothing wrong with the president’s expressing his political preferences for the House. 

Yet (1) is really very different from either (3) or (4). (1) is a criticism the Attorney General for not taking partisan political considerations into account to stop prosecutions established by grand juries to be supported by probable cause. It does not allege that the prosecutions were wrong legally, but only that they were wrong politically. The clear import of (1) is that the Attorney General should prevent the prosecution of Republican Congresspersons when time before the midterm is too short in partisan political terms.  

The force of (1), then, is very much that of (2), and amounts to conduct supporting an impeachment count on which the Senate could and should convict.  It is probable that federal prosecutors will now be a little chary of investigating or charging Republicans. They may, perhaps unconsciously, want to refute Trump’s implication of pro-Democratic bias by being more energetic in investigating Democrats than in investigating Republicans.

The defense against impeaching Trump on this charge will probably be that, after all, Trump is Trump. We have all the evidence in the world that his tweets should be taken with a bushel of salt.   Yes, had Obama or Bush, or Clinton, or Bush, or either Adams made such a pronouncement, it would have been a serious matter on which the House would have had to go into motion. Trump, however, should not be held to the same standards. 

Trump may have intended to influence the conduct of the Justice Department just as much as Bill or John Quincy would have had they made similar statements. With Trump, however, we tend to think, “Well, it is just more stupid buffoonery.”  So, unlike his predecessors, he should get a free pass, just as he should for, “Russia, if you’re listening . . .”  This Trump defense, in effect, proposes an amendment of criminal law theory to create a mens rea exception:  Oafish intent shouldn’t count as intent.