Dem Rep. Eric Swalwell: Our standard for impeachment is different than beyond a reasonable doubt

Yeah, good luck with this, buddy. It’s true that the Constitution imposes no standard of proof on Congress in weighing impeachment and removal. If Democrats want to try to oust Trump because the’ve decided he’s guilty of conspiracy or obstruction of justice by a preponderance of the evidence, have at it. In a world where Bob Mueller was never appointed and Congress rather than the DOJ had taken the lead on investigating the president, I think Swalwell would have some traction for his argument — not enough to convince the Senate to remove Trump, of course, but enough to make impeachment more or less tolerable to the public even with a lower “preponderance of the evidence” standard.

But in a world where Mueller does exist and the DOJ did take the lead, and Trump was cleared of collusion and ultimately cleared by Barr and Rosenstein of obstruction? Forget it. It would reek of a sore-loser vendetta by a party that expected Mueller to deliver for them and then had a collective nervous breakdown when he didn’t. Pelosi probably smacked Swalwell upside the head after this segment for trying to keep progressives’ hopes alive that somehow impeachment is still on track now that Mueller has let the air out of the tires. Democrats have already taken a hit to their credibility from Barr’s summary. They don’t need it compounded by Swalwell essentially arguing that if the evidence of Trump’s wrongdoing isn’t high enough to impeach, they’ll just start lowering the culpability bar until it is.

Swalwell may not be worried about that credibility but some of his colleagues are:

“I think we have to continue to insist on seeing the full report, but we have no choice but to move on and work on policy,” said one House member.

“I think we need the full report and have to pursue it, but there’s real danger in being so focused on this we lose the ability to separate Trump from his marginal ‘supporters’ who would be open to Democrats if we can articulate an economic agenda they can relate to,” said another, who, like the first, was granted anonymity to speak freely about the caucus’ thinking…

“It’s a fine line,” said David Axelrod, Barack Obama’s former top political adviser. “They should pursue the report and testimony. They should pursue the counterintelligence threats that the report affirmed. But they shouldn’t do it in an obsessive way that looks like the beating of a dead horse or obscures their work on other issues of concern to the American people.”

Another wrinkle of the post-Mueller world is how Trump being cleared might play in the Democratic primaries. Tyler Cowen made the case yesterday that Joe Biden is the big loser: “The Mueller report makes it clear that we really are in a post-Obama era, and that even Trump critics need to be thinking about what comes next rather than looking to the past.” I … don’t see that. If Mueller had accused Trump of a crime, he’d have been badly damaged. His job approval would have dipped, the House would have moved to impeach him, the accusation would have tailed him from now until Election Day. Democrats in that situation might have reasoned that a wounded Trump can be beaten by pretty much anyone they nominate, in which case why not roll the dice on a riskier choice? Try Bernie, the socialist. Or try the charismatic but unproven young guy Beto.

But with Trump now cleared and maybe about to enjoy a rare bounce in his approval ratings? There’s no gambling by Democrats in that scenario. They have to play their most electable hand, someone whom voters might trust more than they do Trump. That’s Biden. The stronger Trump looks, the more compelling the case for Biden becomes, I think.

One other point about the clip: What Swalwell says at the end here about letting Barr make the call on obstruction is sharp. I flagged that same argument elsewhere today and have yet to see a strong response to it. If a Trump-appointed AG was destined to decide whether the president is probably guilty of a crime or not, why did we have an “independent” special counsel in the first place? Why didn’t Mueller state his opinion of whether Trump obstructed the probe and invite Barr to overrule him, which the AG had the power to do? All I can figure is that Mueller thought it was a close call and knew there’d be a political firestorm if he and Barr disagreed on whether Trump should be accused, further damaging the DOJ’s reputation. So he punted the decision outright to the AG, who had final authority over whether to charge, to avoid any risk of disagreement. Understandable from an institutional perspective but inexplicable from the standpoint of his office’s alleged independence. He and Barr need to explain.