Op-Ed: The odds Mueller will recommend impeachment have increased, but Trump’s exit remains a long shot


Stephen Bannon nailed it. The Beelzebub-like Breitbart head and former presidential advisor declared that President Trump’s May 9 dismissal of FBI Director James Comey was the biggest mistake in modern political history. That act, the 2017 equivalent of the Watergate burglary, led directly to a criminal investigation by special counsel Robert S. Mueller III that imperils the presidency and may yet force Trump from office.

As an extraordinary political year draws to a close, several highlights of the Mueller probe stand out.

The case that Trump obstructed justice when he pushed Comey to shut down the investigation of his former national security advisor, Michael Flynn, has gone from strong to overwhelming. In the last two weeks, two critical pieces of evidence have emerged: 1) the testimony of FBI Deputy Director Andrew McCabe substantiating Comey’s version of his interactions with Trump; and 2) the news that White House Counsel Donald McGahn told the president of Flynn’s likely criminal behavior just days into the administration.


While the odds that Mueller will recommend impeachment charges have greatly increased, removal by the Senate remains a long shot.

We also know that multiple figures in the Trump circle consorted with Russia and lied about it, several under oath. The Washington Post has calculated that members of the Trump campaign interacted with Russians at least 31 times throughout the campaign.

And we know that Mueller has begun to focus on the money trail, crossing Trump’s “red line.” Both Trump and his son-in-law, Jared Kushner, seem to have relied on Russian financial entities to shore up their troubled empires — and Mueller is looking into those ties. Of near equal significance, a separate federal prosecutor’s office, in the Eastern District of New York, has also entered the fray.

Trump has set the stage for his downfall with his paranoid contempt. He has debased the political dialogue so enormously we sometimes don’t even notice it; we have gotten used to his meeting every kind of charge with porcine squealing or outlandish lies — and essentially getting away with it. But now comes Mueller, patient and opaque, closing in on him little by little and forcing an eventual reckoning with, of all things, the truth.

What does all this portend for 2018?

First, Mueller’s investigation of pre-campaign financial shenanigans, as well as the anticipated trials of former Trump campaign manager Paul Manafort and his deputy Richard Gates, mean the probe is likely to last into 2019.

Second, absent a successful effort to remove or emasculate Mueller (about that, see below), more criminal charges are on the horizon. Kushner may be the most immediately vulnerable, and Donald Trump, Jr. is surely in Mueller’s sights. Mueller could also move against some lesser-known but important figures in Trump’s orbit, including Trump attorney Michael Cohen and former foreign-policy advisor Carter Page.


Third, as Mueller edges toward a possible referral for impeachment, the focus on Congress will increase. All indications are that Republicans will not even try to make a robust defense of the president on the merits. Instead, they will focus on trashing Mueller and working out an end-game solution short of impeachment, such as censure.

Meanwhile, the risk grows that Trump will exercise some sort of nuclear option to rid himself of the whole business. Laying out Trump’s avenues of counterattack would require another column, but the president has multiple levers beyond the most incendiary tack of ordering his deputy attorney general, Rod Rosenstein, to fire Mueller. He can try to replace Rosenstein with a pliable stand-in who will ride herd on Mueller; he can rescind the special counsel regulations that protect Mueller; or he can simply attempt to fire the whole team and lock the doors as an exercise of raw executive power. Any one of these would result in bedlam and court battles that would likely tie up the probe for months.


There is a sort of jubilation on the left these days watching Trump get knocked all over the ring. But we should keep in mind that these are troubled times for the Constitution, with the president of the United States, who still has the support of at least one-third of the electorate, debasing his office daily and telling repeated lies to the American people.

Indeed, given Trump’s Orwellian approach to truth, vilification of the free press, savage attacks on his underlings and enforced cult of personality, the country arguably has taken a quarter turn toward the sort of authoritarian regime we rightly deprecate elsewhere.

While the odds that Mueller will recommend impeachment charges have greatly increased, removal by the Senate remains a long shot. That means that for Trump, but also for the rule of law, we’re not even at the midpoint of a very long winter.

Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches at UCLA Law School and practices law at Constantine Cannon. @harrlitman

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