There are differences between the decisions facing a
prosecutor in an ordinary criminal case and the decisions now facing members of
the House of Representatives. There are also similarities.
Impeachment Investigation
Most cases reach prosecutorial attention after an arrest. In
fewer cases the prosecution becomes involved pre-arrest in the light of evidence
of a crime. These are the cases most similar to the circumstances in which the
US House of Representatives finds itself. The first question in these cases is
whether the weight and quality of the existing evidence and the seriousness of
the crime warrant further investigation.
In the decision whether to open an investigation, the
prosecutor, of course, is concerned only with crimes; the congressperson with
impeachable offenses whether crimes or not. The prosecutor will not investigate
unless there is a decent probability that sufficient admissible evidence will
be found to establish guilt at trial beyond a reasonable doubt. The Senate has
not, in past impeachment cases, established a burden of persuasion standard,
and evidence admissibility is, at best, less clearly defined than it is in criminal
trials.
These factors tend to make it easier for the House to move
forward on an impeachment investigation than for a prosecutor to initiate a
criminal investigation. There is, however, a significant factor on the other
side. The impeachment of a District Court Judge for consistently sleeping during
trial is merely a high level, formalized, personnel matter. The impeachment of
a president, by contrast, is of the greatest constitutionally gravity. The
House ought not pursue an impeachment investigation unless there is a
reasonable probability that it will turn up evidence of offenses bearing on
fitness to perform the presidential duties and of such seriousness as to
justify setting aside the results of an election.
This particular president has a weaker than usual case that
his impeachment would be a sin against democracy. Trump assumed office contrary
to the will of the people as expressed at the ballot box. His campaign was
aided, and his opponent’s damaged, by a massive, coordinated intelligence service
operation of a hostile foreign state. That foreign intervention he, in part, encouraged,
celebrated, and furthered.
Yet, if they cannot make much of an argument from democracy,
Trump’s defenders can make a cogent argument from constitutional legitimacy. The
Electoral College is a failed anachronism and the US electoral system has proved far too vulnerable to foreign manipulation. Still, Trump is the constitutionally
legitimate president. That is enough to set quite a high bar on the decision to
go forward with an impeachment investigation.
The evidence outlined in the second volume of the Mueller
Report, however, easily clears that bar. There is overwhelming evidence of
obstruction of justice and of some acts which, even if there were insufficient
evidence of corrupt motive, show terrible judgment – a judgment, if governed by
principles at all, could only have been by principles antagonistic to the
constitutional order.
The prosecutor has no choice but to investigate the murder
where bloody fingerprints are visible at the scene of the stabbing. The
decision of the House to investigate the Trump presidency should be no more difficult.
Charging an Impeachment
The prosecutor who believes, after thorough investigation,
that no jury will convict should not take the case to trial. It is a waste of the jury’s time, the judge’s
time, and the prosecutor’s time. The defendant may deserve to suffer the
travails of a trial, but it in terms of the public good, it is wasted
suffering. It more often is a crime control negative rather than a positive. Insofar
as the trial is publicized it is likely to convey the message that crime does
pay because the guilty can beat the rap.
If after a thorough impeachment investigation, it is clear
to a House member that the Senate will not convict, then she should not vote the
impeachment. The question is not “do I believe that the president guilty of
high Crimes and Misdemeanors”; it is “do I think there should be an impeachment
trial in the Senate.” Every trial prosecutor
has declined to take cases to trial though knowing the defendant guilty.
(Suppressed or otherwise inadmissible evidence is the chief, but not the only,
cause.) An impeachment that will
certainly fail in the Senate is too great a cost. Insofar as the public, and
history, have a right to know the facts, the impeachment investigation will
have made that record.
If the Senators who will oppose the impeachment would
certainly have voted the other way were the president of the other party, that
is a shame. It would be confirmation of our first president’s fears that
political parties would undermine the Constitution. An acquittal of a clearly guilty president
would likely harden those partisan commitments, among its many other ill
effects.
For criticism of Cass Sunstein's argument that belief in guilt entails a duty to impeach see http://lawrencecrocker.blogspot.com/2018/12/is-impeachment-mandatory.html
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