On Saturday, Rep. Justin Amash (R-Mich.) made headlines by being the first Republican member of Congress to state special counsel Robert S. Mueller III’s report shows that President Trump “has engaged in impeachable conduct.” Sunday, on CNN’s “State of the Union,” Sen. Mitt Romney (R-Utah) commended the congressman, saying, “I respect him. I think it’s a courageous statement.” Yet, as you might have guessed, when Mitt Romney and “courage” are involved, there then came a “but …”
But I believe that to make a case for obstruction of justice, you just don’t have the elements that are evidenced in this document. And I also believe that an impeachment call is not only something that relates to the law, but also considers practicality and politics. … And the American people just aren’t there. And I think those that are considering impeachment have to look also at the jury, which would be the Senate. The Senate is certainly not there either.
Where to begin? Regarding the politics, Romney is right that the Senate and the public aren’t “there.” But waiting for Senate and/or public approval is essentially asking to do nothing. Neither, after all, was “there” for almost all of Watergate. When the House Judiciary began an impeachment investigation in October 1973 — after Richard Nixon fired the special counsel, after months of White House stonewalling and after hours of evidence aired in public testimony — still a majority of Americans opposed the president’s impeachment. Not until August 1974, after the Supreme Court forced the White House to release the Watergate tapes, did a majority of the public back impeachment. It wasn’t until that August that the Senate would have convicted him either — and not coincidentally, that’s when Nixon resigned. So citing the Senate and the public is meaningless.
Romney’s reasoning on obstruction is specious as well: “I just don’t think that there is the full element that you need to prove an obstruction of justice case. I don’t think a prosecutor would actually look at this and say, okay, we have here all the elements that would get this to a conviction.” As former federal prosecutor Mimi Rocah says, there is no such thing as the “full element” of proof. It’s a meaningless term. As for what “a prosecutor” would do, well, hundreds of former federal prosecutors signed a statement that Trump’s conduct, were he anyone but the president, would “result in multiple felony charges for obstruction of justice.”
Romney repeated this error later in the interview when he said “when there’s not an underlying crime, I think it’s difficult to put together an effective case to prosecute for those crimes.” This is a common GOP talking point these days — indeed, it was repeated within the hour by the show’s conservative panelists. But again, hundreds of federal prosecutors disagree, and there is ample precedent for charging obstruction when there’s no underlying crime — for example, when a public official is covering up an affair.