Former Bush counsel Robert Painter: Democrats must impeach -- or lose

Former Bush counsel Robert Painter: Democrats must impeach -- or lose
Official White House Photo by Shealah Craighead

Robert Mueller's report, even in redacted form, reveals how Donald Trump and his inner circle colluded with a foreign power to undermine American democracy. It also shows a president and his allies who were and are willing to obstruct and otherwise interfere with justice in order to remain in power. The Trump regime's assault on the rule of law and democracy are not means and goals unto themselves. As with other authoritarian regimes, the ultimate goal is to amass more power and money at the expense of the public. Corruption and a lack of ethics are not exceptions in such types of governments. They are the rule.

From Transportation Secretary Elaine Chao's questionable connections with the Chinese government through her family's business to extreme conflicts of interest among other members of Trump's cabinet and the president's own clear violations of the Emoluments Clause of the Constitution, Trump's regime is corrupt and unethical. For those reasons and many others, Donald Trump should be impeached, convicted and removed from office.

What kinds of ethical and other violations were revealed by the Mueller report? In what ways did Mueller's mandate and Department of Justice rules save Donald Trump, at least for the moment, from prosecution? Why has Robert Mueller not been more forceful and clear in telling the American people that Trump has obstructed justice, both in public and in private? Why are Nancy Pelosi and the Democratic leadership so reluctant to follow through on their constitutional responsibility to remove a lawless and dangerous president?

In an effort to answer these questions I recently spoke with Richard Painter. He was White House chief ethics counsel under George W. Bush and is a frequent political commentator and analyst on CNN, MSNBC and other news networks. Painter is also a professor of corporate law at the University of Minnesota and the author of several books, including "Getting the Government America Deserves." He is also the host of "The Politics Podcast With Richard Painter."

This conversation has been edited for clarity and length.

What is your response to Robert Mueller's report and its findings?

The second part of the Mueller report lays out a very clear case against Donald Trump for obstruction of justice. The facts are very strong. There are some unresolved legal questions about what the powers of a president are under the unitary executive theory which would have to be resolved. There are some constitutional issues that could also result if the president were to be charged with obstruction of justice in a criminal court.

But Robert Mueller made it very clear in his speech last week, and it's very clear from the report, that the overriding concern which motivated the Department of Justice not to prosecute Donald Trump is the fact that he is president of the United States. It is the position of this Justice Department that the president could not be prosecuted for any crime whatsoever while he or she is in office. Robert Mueller is sending a very clear message that the ball is in Congress' court. It is up to Congress to take the appropriate actions.

Since the release of the Mueller Report, Fox News and other right-wing propaganda outlets have claimed that Trump is innocent because there was no finding of a criminal conspiracy. This, however, does not mean that Trump and his inner circle and other agents did not collude and otherwise cooperate with Russia and its representatives to subvert the 2016 election and to undermine American democracy more generally. Can you elaborate on the law in this matter?

Criminal conspiracy requires not only that the conspirators know that a crime is going to be committed, but that they knowingly intend to help each other commit the crime — and  then commit certain overt acts in connection with that conspiracy.

Sufficient evidence to prosecute for criminal conspiracy could not be found in the Mueller investigation. That is to some extent expected because the Russians did not need the help of anybody in the Trump campaign to hack Hillary Clinton and the DNC's emails or to leak them to WikiLeaks. That was one crime. There were other crimes, such as using social media accounts through fraudulent means. Ultimately, the Russians did not need the help of the Trump campaign to commit the crimes, and therefore there was not evidence sufficient to prosecute a criminal conspiracy.

Now, that has absolutely nothing to do with collaboration and collusion, for which there is a great deal of evidence. But this is not a criminal conspiracy. For example, there are people who collaborate with criminals and benefit from the acts of criminals but who do not technically, as understood by the law, conspire with the criminals to commit the actual crime. That is what we have here with Trump and Russia. There was definitely collaboration. You've got a Russian agent sitting there with Donald Trump Jr., and Jared Kushner, and other top campaign brass. Roger Stone had contacts with Russia. So yes, there was lots of collaboration with the Russians, but collaboration is not a crime. Criminal conspiracy needs to be proven.

This is why Robert Mueller chose not to prosecute for criminal conspiracy. But with that being said, when there's collaboration with a foreign power that has committed criminal acts, espionage inside the United States, to destabilize our election, first, we ought to expect people to be truthful about it and not to try to obstruct the investigation. Quite the contrary, there was plenty of lying about the Russians and lots of obstruction. Second, we ought to be very concerned about the people in the highest parts of our government who were regularly communicating with the Russians, knowing the Russians were engaged in criminal activity. Donald Trump actually asked the Russians to hack Hillary Clinton's email in a speech when he was a candidate.

Jared Kushner, Trump's son-in-law and one of his closest advisers, even admitted during a recent TV interview that if the Russians reached out to him like they did during the 2016 election he would not promise to call the FBI. 

This is not just about a theoretical question of whether Jared Kushner would say "yes" to the Russians. We already have Rudy Giuliani communicating with the Ukraine government to investigate Joe Biden and his son. We've got Donald Trump, himself and the dictator of North Korea saying that Joe Biden has a low IQ. The bottom line is clear: The Trump administration is sending a message around the world that if you help us beat Joe Biden or whoever the Democratic nominee is in the 2020 election then you are going to be in our good graces. They are already actively soliciting foreign support for the Trump re-election campaign.

Russia may very well be front and center again in 2020 as they were in 2016 regarding interference in America's presidential election. But the Trump administration is seeking to use its power of diplomacy to bring other countries into the act as well.

Why has Robert Mueller not been much more direct and plain-spoken about Trump, obstruction of justice and Russia? Why is he being so opaque?

Mueller clearly stated his position in the Trump-Russia report. There is the question of how lawyers talk. As a prosecutor, it would be irresponsible for Mueller to say, "Well, this person committed this crime, unequivocally, but I'm not going to prosecute." You simply cannot say that. You have to either prosecute somebody or not. You can't say, "I'm not prosecuting them, but I believe they committed the crime." Imagine if prosecutors did that to ordinary citizens. In other words, "I'm going to say so-and-so committed murder or rape, but I'm not going to prosecute them." That would be terrible damage to a person's reputation.

This is a unique circumstance. I believe that Robert Mueller can depart from the usual rule of either charge somebody or shut up, but he's gone as far as a prosecutor possibly can, ethically, in this situation.

In his report and public statement, what Robert Mueller is saying is, "Here's overwhelming evidence of obstruction of justice. For these reasons, we have not charged. House of Representatives, do your job." That's where we need to go. Robert Mueller has put this in the House of Representatives' lap. I do not think that the House of Representatives can squeeze out of this situation and their responsibilities by saying that Robert Mueller is not being clear enough. It is all there in the report.

What type of person has Attorney General William Barr shown himself to be? How is he reasoning through his very questionable behavior and justifying it to himself?

I have no idea what is going on with William Barr. He came out of the George H.W. Bush administration with a good reputation — even though he had some involvement in those Iran-Contra pardons. He on the whole had done a very good job as attorney general of the United States. Why he would want to come back, almost 30 years later, into the same position and conduct himself in this manner is really impossible to guess. Maybe he wants the power and the attention, to go back to his glory days as he sees them.

This is a disaster. Barr never should have been involved in the Mueller investigation to begin with because he had been giving advice to Trump's defense lawyers in the exact same investigation. He wrote memos to the defense lawyers. Barr also supports the legal arguments used to oppose the Mueller investigation, including the argument that the president of the United States cannot commit obstruction of justice, in a Justice Department investigation, under the unitary executive theory. William Barr also apparently interviewed with Donald Trump to be considered as his personal attorney, or one of his personal attorneys, in this very same investigation. So Barr should have recused himself on this matter.

Second, when Barr summarized the Mueller report he did so inaccurately. Barr was so wrong that Robert Mueller wrote him a letter basically saying that he had concerns about the summary. Then Barr proceeded to testify in front of the United States Congress in a misleading fashion, forgetting about that communication he received from Robert Mueller. There is Barr's heavily-redacted version of the Mueller report. Barr is not willing to turn that report over to the House and Senate or to comply with subpoenas from Congress. This is unacceptable.

What of Barr being given the power by Trump to unilaterally declassify intelligence information in an effort to prove some "conspiracy" or "coup" through the Mueller investigation and other Democrat-led oversight?

We need to keep the sources of our information classified because the Russians are going to try this again in 2020. When the United States declassifies such information, the country's national security is being jeopardized. To declassify information for political reasons, and to do so selectively in a way that helps Donald Trump prove his conspiracy theories and then keep everything else classified that debunks his claims, is unacceptable.

There are people who still believe that the "rule of law" and the "guardrails of democracy" will protect the United States from Donald Trump and his regime's excesses. Is such a hopeful vision justified?

The United States is not doing very well in this regard. Donald Trump wants to ignore the rule of law. He ignores the Constitution. He ignores the subpoenas. The Republicans in the House and Senate are afraid to stand up to him, with only a few exceptions. On the Democrat side there are a lot of people playing politics. Nancy Pelosi is playing politics, as are some of the other senior Democrats. They are not willing to do what the Constitution says the House should do when the president has engaged in high crimes and misdemeanors, and that is introduce articles of impeachment.

The Democrats are not even willing to open up an impeachment inquiry. This is not a good situation at all. The Democrats are making a tragic mistake. There is no way the Democrats can go out in 2020 and campaign on the premise that Donald Trump has committed serious crimes in office if they are not willing to impeach him for those crimes. The voters are not going to buy that. How in the world can the Democrats say Donald Trump committed all these serious crimes and not impeach him? The Constitution is very clear on this matter.

What would you tell Nancy Pelosi about impeaching Donald Trump?

Well, I'd ask Speaker Pelosi, "Do you believe that Donald Trump has committed serious crimes in office, yes or no, and do you believe he obstructed justice?" This goes beyond the Mueller report. If the answer is yes, then you must impeach him. If not, then run against Trump on the issues but do not run against him by saying that he committed serious crimes in office. You cannot have it both ways.

How does this feel different from or similar to what happened with Richard Nixon?

The Nixon situation was a crisis, but the United States House was willing to have an impeachment inquiry. This is a lot worse than that. Nixon and Watergate didn't involve the KGB. This one involved the Russians.

Arguably, Trump should be impeached for many reasons beyond the Mueller report. His administration is rife with corruption. For example, Transportation Secretary Elaine Chao and her family's lucrative connections with China

The Trump administration is completely ignoring all the ethics rules, including the Financial Conflict of Interest Act. There could end up being some serious criminal exposure for anyone in the executive branch who participates in United States government matters that have a direct effect in their own financial interests. They had better be very careful because there could be prosecutions.

The Trump administration is completely lawless. With Donald Trump it is a little different, in that the president and the vice president are not subject to the Financial Conflict of Interest Act 18 U.S. Code 208. They are instead subject to the Emoluments Clause. They cannot take foreign government profits and benefits. But the other conflicts of interests they have, including private deals around the world — the president, the vice president, as well as the members of Congress are not subject to the general conflict of interest statute. They should be, but they are not.

I want to emphasize that cabinet members or other executive branch officials who think that they are going to follow Donald Trump's example of having personal financial conflicts of interest could very well find themselves in jail.

If America's government was working as designed and intended by the framers and the Constitution, what would be happening now with Trump and his administration?

There would be an impeachment trial under way in the United States Senate against Donald Trump by now. This process should have started in 2017.

Do you think the Democrats will defeat Trump in 2020?

If the Democrats do not open a formal impeachment inquiry they risk losing to Donald Trump. The Democrats cannot run on a platform which says that President Trump is guilty of serious crimes in office if they're not willing to impeach him.

Many people voted Democratic in the 2018 election because they believed there would then be a House of Representatives that would hold Donald Trump accountable. So far, that's not happening. We'll see what happens over the summer and into the fall, but the Democrats need to produce. There has been a lot of rhetoric from the Democrats, a lot of complaining about Donald Trump, but we've also had Democrats going off on all sorts of other subjects but not doing anything about the reason they were elected by the American people, which was to check Donald Trump. The Democrats need to open this impeachment inquiry and move this process along.

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