Impeach/Prosecute Trump?

The Impeach Trump people were bitterly disappointed by Robert Mueller’s report and his press conference. As Trump has tweeted, Mueller found insufficient evidence to show that Trump actively conspired with Russia. As some have noted, it seems that Trump tried to do so, but was thwarted by both ineptitude and the refusal of some to act on his orders. While Trump claims that the report exonerates him on the obstruction charge, Mueller has asserted that this is not the case—but has done so within a context that is rather complicated.

Those who are not supporters of Trump see the report as showing that Mueller could not charge Trump with a crime because Department of Justice policy forbids doing so; but they see within its words evidence that Trump did engage in obstruction. When Mueller held his press conference, he made a statement that simultaneously fueled the hope of the anti-Trumpers and confused them: “If we had had confidence that the president clearly did not commit a crime, we would have said so.” When I teach critical thinking, I point out that the LSAT includes conditionals (if..then statements) and negations in the “games” section because people are generally very bad at both. In my next class, I will use Mueller’s statement as an example that combines both. Those who dislike Trump have sometimes tended to see Mueller as making this argument:

Premise 1: If we had had confidence that the president clearly did not commit a crime, we would have said so.

Premise 2: We did not say so.

Conclusion: The president committed a crime.

But sticking carefully to his words, this is what he seems to be arguing:

Premise 1: If we had had confidence that the president clearly did not commit a crime, we would have said so.

Premise 2: We did not say so.

Conclusion: We did not have confidence that the president clearly did not commit a crime.

While I am no fan of Trump, not having confidence that the president did not commit a crime is different from claiming that the president did commit a crime. As such, while Trump has not been exonerated (which would require saying that he did not commit a crime) he has also not been shown to have committed a crime. This might be because, as noted above, Mueller is working within the technical policy of the DOJ: he cannot say that Trump committed a crime because the policy says he cannot say Trump committed a crime. Or, as Trump’s supporters claim, he cannot say that Trump committed a crime because there is not enough evidence. Mueller could, of course, clear this up with one statement—but his devotion to policy and rules seems to prevent him from doing this. Like many a professor I have known, he seems exasperated that people have not done the reading and that they do not clearly grasp what seems utterly obvious to him. While such devotion to the rules can be praiseworthy, the result is that the report seems unclear: people want to know whether Trump did or did not obstruct justice; they do not want an exercise in logic and policy. But how does this tie into impeachment?

While many Democrats would love to impeach Trump, some of them realize that the Mueller report is not a political silver bullet: while a careful reading and analysis might reveal that Trump committed impeachable offenses, such care and analysis do not work politically. There is also the fact that the Senate will back Trump, probably regardless of what he does. As such, if the Democrats push for impeachment, they will fail. This could have the effect of demoralizing the Democrat’s base while igniting Trump’s base, thus helping him win a second term. As Pelosi has calculated in her coldly political mind, impeachment will not pay off for the Democrats: they have a better chance of winning in 2020 if they do not impeach. So, if they win, should Trump be charged once he is out of office?

While I do believe that people should not escape justice, there would be a serious problem with prosecuting Trump for his actions in office. This problem is that it would, even if Trump were guilty, create the impression that the Democrats were using the machinery of justice against a political opponent for political reasons. While Trump himself is clearly fine with using such tools against his foes, even the appearance of doing so would be damaging to the country. Trump’s supporters would, obviously, believe that Trump was being victimized by the Democrats and react negatively—many (especially on Fox News) would call for revenge in places where Republicans held power or when the Republicans won the Presidency again. As such, even if Trump deserved to be prosecuted for obstruction, he should not be—for the consequences of even seeming to use the justice system as a political weapon would be too dire. This, of course, does come at a price: I am accepting that wrongdoers should sometimes be let off the hook on utilitarian grounds—thus setting a precedent for tolerating misdeeds.

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