WASHINGTON – If President Donald Trump is worried that he could be impeached should Democrats take control of the House in the midterm elections, he is not acting like it. If anything lately, he seems to be offering more examples for his opponents to use against him.
His tweet over the holiday weekend chastising Jeff Sessions, the attorney general, for the Justice Department’s recent indictment of two Republican congressmen because it could cost the party seats in November crossed lines that even he had not yet breached, asserting that specific continuing criminal prosecutions should be decided on the basis of partisan advantage.
Shocking as many legal and political figures found it — one Republican senator compared it to “banana republic” thinking — the message by itself might not rise to the level of high crimes and misdemeanors required for impeachment because it could be construed as commentary rather than an order. But legal scholars and some lawmakers said it could be one more exhibit in trying to prove a pattern of obstruction or reckless disregard for the rule of law in a future impeachment proceeding.
“I think it was appalling,” Sen. Susan Collins, R-Maine, told reporters asking on Tuesday about the tweet. “It’s unbelievable. It’s unbelievable.”
Sen. Sheldon Whitehouse, D-R.I., a former U.S. attorney, said “rare is the case that you make with one item of evidence,” but the president’s comment could be “potentially additional evidence of corrupt intent in an obstruction of justice prosecution.”
The tweet further cemented the impression of a president who sees the law enforcement agencies that report to him as political instruments rather than semiautonomous organs that should remain free of partisan influence.
While in office, Trump has repeatedly castigated the Justice Department and FBI for investigating his associates and not investigating his enemies. He has threatened time and again to fire Sessions because his recusal from the Russia investigation meant that he could not protect the president from the inquiry.
The post Trump wrote on Monday took his criticism of the Justice Department to the next step, suggesting that defending the Republican majority in the House should determine whether two members are prosecuted.
“Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department,” he wrote. “Two easy wins now in doubt because there is not enough time. Good job Jeff.”
He was presumably referring to indictments of Reps. Duncan Hunter of California, who was charged with using more than $250,000 in campaign funds for personal expenses, and Chris Collins of New York, who was charged with insider trading. Both have pleaded not guilty.
Trump’s suggestion would have been a major scandal under any other president, veterans of past administrations said.
“His interference in an ongoing criminal investigation may be the single most shocking thing he’s done as president,” said Walter Dellinger, a former acting solicitor general under President Bill Clinton.
Sen. Jeff Flake, R-Ariz., who has been among the president’s most outspoken critics in his own party, had the same reaction.
“Those who study this kind of thing say it’s a lot more evidence for abuse of power or obstruction,” he said. “I just know it’s not healthy for the institutions of government to have the president want to use the Department of Justice that way.”
Sen. Lisa Murkowski, R-Alaska, likewise criticized the president’s comments.
“I’m looking at them just as you are looking at them,” she told reporters. “I thought that yesterday’s comments were not appropriate, and they upset me.”
Asked if Trump was only feeding Democrats’ interest in impeachment, she said, “I have no idea what he is doing. I have no idea what he is thinking.”
Other Republicans avoided commenting or seemed less concerned. “I have no reason to believe these prosecutions are politically motivated,” said Sen. Lindsey Graham, R-S.C. “I think it was a comment not designed to obstruct justice but in my view, not appropriate.”
A spokesman for the president did not respond to a request for comment.
But David Rivkin, a Washington lawyer and veteran of past Republican administrations, said it was fair to question why the Justice Department charged the two congressmen so close to an election when the past three attorneys general signed memos discouraging such prosecutions during a campaign season.
“What is missing in this whole controversy is DOJ derogation from decadeslong policy from not pursuing any overt investigative actions against politicians close to the elections,” Rivkin said. “Trump has a salient point even if he didn’t phrase it well, making it seem like he is objecting to the indictments of those individuals, period.”
If Sessions had actually done what Trump suggested — refused to indict to protect Republican seats in the election — it could be considered a crime or an impeachable offense for the attorney general. But because Trump merely offered his opinion, as opposed to issuing an order, some legal scholars said it might be hard to define that as an impeachable offense by the president.