Angus King: Firing Mueller not an impeachable offense by itself, you know

It may be a moot point, since everyone — well, everyone except John Dowd, anyway — insists that Donald Trump isn’t going to fire Robert Mueller. But even if he did, Sen. Angus King told Hugh Hewitt this morning, it wouldn’t be grounds for impeachment … at least not on its own. Coming from a senator who caucuses with Democrats, that sends a different signal than that coming from colleagues — on both sides of the aisle.

Let’s start with a later conversation between Hugh and Sen. Lindsey Graham (R-SC),  who said it would create a constitutional crisis and could lead to an impeachment. Firing Mueller would go to the heart of checks and balances, and defeating those would require a Congressional response, Graham argues:

HH: Okay, now let me ask you, back in the day, a long time, ago, 1998, you were one of the 13 impeachment managers named by the House to press the case against Bill Clinton. So this is going way back. So I have a very simple question. If the President fired Robert Mueller, do you think that would be an impeachable offense?

LG: Probably so, if he did it without cause, yeah.

HH: Now Angus King said no last hour. Why do you think it would be?

LG: Well, I think what the President will have done is stopped an investigation in whether or not his campaign colluded with the Russians, what effect the Russians had on the 2016 campaign. I can’t see it being anything other than a corrupt purpose.

HH: You see, I am in agreement with you that an impeachable offense is anything that the Congress says it is, regardless of what scholars might say. And I believe the Congress would say that if it were run by Democrats. Do you think a Republican-led House would impeach the President?

LG: Well, that’s a good point. Let’s say that Obama fired somebody. I think we’d all have a different view on the Republican side. A high crime and misdemeanor in the Constitution is a fairly vague term. But what is at the essence of impeachment is a check and balance on a President, right?

HH: Yes.

LG: …who’s gotten out of their lane, who changed the rule of law and basically turns it upside down. I can’t think of a more upsetting moment in the rule of law to have an investigator looking at a president’s campaign as to whether or not they colluded with a foreign government, what kind of crimes may have been committed. I’ve seen no evidence of collusion, but to stop investigation without cause, I think, would be a Constitutional crisis.

Why would Sen. Angus King (I-ME) have said no to that question? The acute political concern would be that voters fear that Democrats want to win control of the House for impeachment, which is why Nancy Pelosi has been trying to tamp down talk of the I-word for the last several months. King caucuses with Democrats in the Senate and might share the same concerns. That dynamic might change, though, if Trump fires Mueller and voters turn against him over that.

King doesn’t raise that issue with Hugh, however, preferring to rest on legal standard. Let’s go to that transcript:

HH: Let me talk to you now about the Special Counsel investigation. And I’m going to ask this of Lindsey Graham next hour. If Mr. Mueller was fired, would you consider that to be an impeachable offense?

AK: No. I would consider it a crisis. I would want to think about it in terms of all the other material that we’ve seen. High crimes and misdemeanors is the standard for impeachment, and I have a high standard for impeachment. I don’t think impeachment should be used to change a government you don’t like. I think going back to Andrew Johnson in, you know, 1867, this is something we’ve got to be really careful with. We don’t want to change our form of government. But the problem is that if the President does this, I think it is a huge mistake. It adds weight to the argument that there’s been an ongoing obstruction of justice of trying to basically quash in investigation. I think it’s, I wouldn’t say it rises to the level of an impeachable offense, but I certainly think it’s going to create a real problem. And I think, I went down the list yesterday. There are 8 or 9 senators, including people like Orrin Hatch and Chuck Grassley and John Cornyn who have said this would be a huge mistake. Newt Gingrich said it would be a disaster. Lindsey said he thought it would be the beginning of the end of his presidency. So I think everybody’s concerned about this, and I think it would be a huge mistake from his point of view. If he’s really, if he’s innocent, which he keeps saying that he is, he ought to want this thing to go forward and be as thorough as possible so the American people can get the results, can be, have confidence and say yeah, look, this Mueller guy did a tough job and a thorough job, and there’s no evidence. That’s the result the President should want. If he cuts it off, half the country’s going to think hey, he’s trying to hide something.

There are problems with both answers. Let’s start with King’s reliance on the phrase “high crimes and misdemeanors,” which does not necessarily require criminal indictments. As Hugh and Graham later point out, the standard for impeachment lies with the House, not the penal code. Even if the president commits a crime — let’s say shoplifting, for instance, or passing bad checks on his personal account — the House could well determine that this has nothing to do with the president’s execution of his office and doesn’t require impeachment. On the other hand, if a president commits a political act that undermines the authority of Congress or the judiciary, that could provoke impeachment and removal even if it technically doesn’t violate the penal code.

In essence, “high crimes and misdemeanors” means whatever a majority in the House of Representatives decides it means in any particular instance. If two-thirds of Senators agree with that finding, a president gets removed from office.

However, Graham’s argument has a weak point, too, which is that Congress has no role in the special counsel. The “check and balance” on the presidency are the other two branches — Congress and the Judiciary — and not the Department of Justice, which operates under the command of the presidency. Had Congress wanted to provide a check and balance in this situation, they could have created their own special counsel probe by statute, assuming they could sustain it through a Trump veto.

Instead, Congress has more or less defaulted on their check-and-balance responsibility in this instance. Rather than taking action on their own, they dodged it by demanding that the DoJ conduct a special counsel under the president’s authority rather than theirs. Regardless of Robert Mueller’s integrity, this is not actually a constitutional check on the president, and therefore firing him wouldn’t create a constitutional crisis in and of itself. It would set off a political firestorm that might result in an impeachment, which is a constitutional crisis by definition, and it would be an extraordinarily foolish act for the reasons cited by King, Graham, and Hugh, but it wouldn’t have anything to do with constitutional checks on power. Congress could in fact fix it by authorizing Mueller to continue his probe under their authority, again assuming they could sustain legislation past a Trump veto.

Notably, Trump’s Twitter feed has been quiet about Mueller since his personal attorneys — sans Dowd — have insisted that Trump isn’t even thinking about firing Mueller. NBC noted the attempts to clear the air yesterday, and perhaps someone suggested that further attempts to engage Mueller on Twitter would be somewhat, ah, counterproductive.

“It’s a bad idea for the subject of an investigation to criticize the investigative team,” NBC’s legal analyst Chuck Rosenberg points out. That’s why you hire attorneys. And that may be why Trump just added Joseph DiGenova to his legal team. Stay tuned.

Addendum: Just to close the loop on constitutional checks, I should have noted above that impeachment and removal is the constitutional check on the executive — and for that matter on the judiciary, too. Mueller has nothing directly to do with either.