For months now, progressives have been calling for President Trump’s impeachment on grounds ranging from his supposed violation of the emoluments clause to his claim that the Obama administration wiretapped his phones at Trump Tower. So many Democrats have brought up impeaching Trump that CNN now keeps a running list.
Therefore it was only a matter of time before Trump’s firing of FBI Director James Comey sparked calls for impeachment from some prominent progressive, and last week Harvard professor Laurence Tribe did the honors. In an op-ed for The Washington Post, Tribe called on Congress to impeach the president for “high crimes and misdemeanors,” saying that Comey’s ouster amounts to obstruction of justice “vastly more serious than the ‘third-rate burglary’ that Nixon tried to cover up in Watergate.”
Normally, this sort of accusation would be a serious matter. After all, Tribe is one of the most revered legal scholars in America. He has argued before the Supreme Court dozens of times and is widely respected by lawyers and lawmakers across the ideological spectrum.
Yet Tribe’s call for impeachment rings hollow. Instead of a grave warning from a distinguished constitutional scholar, Tribe has become a high-profile example of Trump derangement syndrome—that political malady whereby pretty much everything Trump does, no matter how mundane, is a threat to our democracy and a trampling of the Constitution.
It’s not just Tribe’s dramatic call for impeachment. His Twitter feed provides plenty examples of his strange habit of tweeting out obviously fake conspiracy theories about Trump, appended with some variation of “huge if true,” like this one:
I don’t know whether this is true, but key details have been corroborated and none, to my knowledge, have been refuted. If true, it’s huge⬇️ https://t.co/htOz5J1pLN
— Laurence Tribe (@tribelaw) April 23, 2017
Conspiracy theories notwithstanding, now that no less a figure than Tribe has issued the call for impeachment over the Comey firing, we’re going to keep hearing about it from Democrats and commentators far and wide, as if it were a serious idea backed up by solid arguments and historical precedent.
Comey’s Firing Doesn’t Warrant Impeachment
It’s not, and it isn’t, and it’s disconcerting that otherwise sober people are pretending that Trump’s imprudent tweeting about a counterintelligence investigation is grounds for removing him from office.
Make no mistake, it’s not Trump’s firing of Comey that has progressives calling for impeachment. As a matter of executive authority, there’s no question that the president can fire the director of the FBI—and given Comey’s horrible handling of the Hillary Clinton email investigation, Trump had ample reason to do so.
No, what’s prompted the calls for impeachment are Trump’s statements to NBC’s Lester Holt that he fired Comey partly over “this Russia thing,” and had resolved to fire him regardless of recommendations from the Justice Department. That sounds bad, but deciphering what Trump’s rambling answers really mean is no straightforward task. It sounds like Trump had come to the conclusion based on Comey’s past performance (including both the Russia probe and the Clinton investigation) that he was not very good at his job and Americans needed someone more competent.
Maybe Trump is wrong about that, but it’s not obstruction of justice. As legal scholar Richard Epstein noted last week at Vox, if Comey deserved to be fired for his conduct of the Clinton email investigation, then it makes no sense to say that Trump was obstructing justice by firing him. “It requires contortions to convert an action that has independent justification into one that prompts talk of obstruction of justice and impeachment,” writes Epstein. “In effect, one difficulty with that extravagant assertion is that it makes Comey de facto immovable from office so long as he continues to conduct this investigation.”
Moreover, this entire line of argument conflates a counterintelligence investigation with a criminal investigation. Back in March, Dan McLaughlin explained the important difference at National Review Online. The FBI is not conducting a criminal investigation of Trump or his campaign, but it is conducting a counterintelligence probe into Russian efforts to influence the election, which is what Comey told Congress.
That means two important things: “First, it means that nobody determined that there was a basis to think a crime may have been committed—or that investigators were likely to uncover a crime—before starting an investigation,” writes McLaughlin, adding that that’s not what most people think when they hear “FBI investigation.”
Second, it means that the investigation has no target and no standards, and that there is no expectation it will have a public endpoint. Criminal investigations may be broad-ranging, but they are ultimately creatures of law: A crime may have been committed; investigators look to build an evidence-based case that one was, and by whom. There are witnesses, testimony, legal elements to satisfy, and often a statute of limitations that argues for wrapping things up. At the end, there’s a public accounting: an indictment and a trial or plea. If the investigation becomes publicly known, the FBI and DOJ may break from their usual practice in confidential grand-jury investigations and announce that it’s over. A counterintelligence investigation, on the other hand, seeks only information, which may be developed over a lengthy period of time, and because it carries no possibility of charges, it can never clear anyone of wrongdoing.
In short, the FBI’s counterintelligence probe, which acting FBI director Andrew McCabe said last week is moving along apace with all the resources his agents need, is not the thing progressives wish it were. They want something from the FBI that the Russia probe cannot give them.
Obstruction of Justice Has a Definition
For progressives aching for impeachment, this is understandably vexing. They want more. Over the weekend, Nicholas Kristof’s column in The New York Times asked darkly, “Is President Trump Obstructing Justice?” The Comey firing, in Kristof’s fevered imagination, “can be seen as simply one element of a systematic campaign to undermine the rule of law and democratic norms.”
He’s right that rule of law and democratic norms are important. That’s why something like obstruction of justice has a definition, so we don’t have to speculate whether Trump’s off-the-cuff remarks to the press constitute it. They don’t, and it’s delusional (or disingenuous) to suggest that they do. It hard to imagine that Tribe, even with all those conspiracy-mongering tweets, really believes Trump’s behavior up to this point constitutes acts of obstruction of justice.
But such is the power of Trump derangement syndrome. Not only does it cloud the present, it obscures the past. Kristof claims that “Trump challenges the legitimacy of checks on his governance, bullies critics and obfuscates everything.”
That might be true, up to a point. If so, it means Trump has more in common with his predecessor than the likes of Kristof and Tribe are willing to admit. But if such behavior wasn’t grounds for impeaching President Obama, it’s not grounds for impeaching Trump, no matter how much progressives despise him.