Special counsel Robert Mueller’s cryptic message to Donald Trump’s attorneys that the president is being investigated but is not currently a criminal target is certain to intensify talk of impeachment. As Princeton University professor Keith Whittington told the Washington Post in response to the news, while Trump could still become a criminal target, “The president’s personal risk is primarily on the impeachment front.”
But if Mueller believes that Trump needs to be held accountable for any violation of law, he cannot expect Congress to do the accounting. There is only one mechanism that has any chance of working, and it is not impeachment. It’s indictment.
Impeachment is a dead end because the congressional jury pool is tainted. Mueller has been systematically demonized for weeks by Trump and his allies. For example, earlier this week Fox News host Sean Hannity warned of a proverbial “civil war … if Robert Mueller is so pompous and so arrogant and so power hungry and so corrupt” that he would accuse Trump of a crime (as if that’s the only motivation Mueller could possibly have). In turn, more than half of Republicans disapprove of Mueller’s handling of the investigation, giving House Republicans no incentive to get crosswise with their base and support impeachment.
Even if Democrats take control of the House after the November elections, and unify around impeachment (both big ifs), a two-thirds vote of conviction in the Senate is almost surely impossible. In the wildest Democratic midterm election fantasy—a complete sweep of every 2018 Senate contest—Democrats would reach 58 seats, leaving them nine short of a two-thirds supermajority. Realistically, several more than nine Republicans would be needed to convict. But good luck finding even that many who would play Brutus to Trump’s Caesar. The only Republican senators who have vocally criticized Trump got hounded out of running for reelection and won’t be around to convict an impeached president.
And yet, the prospect of impeachment may well be front and center in the midterm elections. Two recent polls show that while a small majority of voters do not want to see House impeachment hearings, at least 7 out of 10 Democrats do. Billionaire activist Tom Steyer is trying to give voice to that Democratic base sentiment by hosting 30 pro-impeachment town halls across the country. A handful of Democratic congressional primary candidates are running on impeachment, including at least two Florida’s Mary Barzee Flores and California’s Andy Thorburn airing TV ads to that end. Republicans are more eager than Democrats to discuss impeachment, as they want to wake up a lethargic conservative base with alarmist predictions of what a Democratic House might do.