Early morning thoughts on crime and impeachment thumbed on an airplane heading home:
(1) It doesn't matter if the President can or cannot theoretically be indicted while he remains in office, because the President will not be indicted while he remains in office.
The Justice Department has a stated constitutional view on this subject that all prosecutors working cases involving President Trump will consider binding with respect to their investigations.
(2) The debate over what is and is not an impeachable offense, when framed in purely legal terms, largely misses the point.
(3) The question of what an impeachable offense is and is not, by the very structure of the impeachment clauses, is textually committed by the Constitution to the House of Representatives to decide. This does not mean the question is purely political.
It is surely inflected by law. But at the end of the day, the Constitution will support a wide range of understandings of "High Crimes and Misdemeanors."
(4) As such, the core of the question before us is not whether the President has committed crimes (though that may become the operative question later on). And it is also not whether he has met some mythical legal standard that triggers impeachment.
(5) The relevant question is twofold: first, has he behaved in a fashion that a reasonable legislator should regard as unacceptable in a president?
And second, would it be wise and prudent and desirable for Congress to seek his removal in response to that behavior?
(6) The answer to the first question is easy. Of course he has. Trump's conduct toward the law enforcement apparatus of the country alone would justify his impeachment as a matter of law, in my view.
(7) The answer to the second question is not easy at all.
(8) This distinction between points (6) and (7) strikes me as very important and the core of Rep. Nadler's answers to questions about whether the Cohen allegations amount to impeachable offenses.
Nadler has said more than once that they would be impeachable if true but that it's less clear whether the offense would be important enough to warrant impeachment--thus drawing an important distinction between the availability of the tool and the prudential wisdom of using it.
Put another way, the House has a great deal of prosecutorial discretion in the exercise of its impeachment powers.
(9) Likelihood of successful removal in the Senate is a critical prudential factor in the exercise of that discretion.
There is moral value in the rule of law message the House might send with an impeachment doomed from the outset. But it has to be balanced against the countervailing factors: martyring the president before his supporters, for example.
Rule of law messaging that helps the man get reelected and continue his war against our rule of law institutions is really not a good trade.
(10) In other words, it's okay, desireable even, to think strategically, even a little politically. A purely doctrinal approach may lead to bad places. Impeachment is a tool to protect republican government. We should not use it in a fashion that empowers democracy's foes.
This is not to say I oppose impeachment. It is a tool that Trump's conduct has put on the table, and it must be always available. But like any powerful weapon, one must wield it carefully and expertly.
(11) Order of operations, as in math, is critical here. Former federal prosecutors love to go on TV and talk about Trump in a criminal law context. It is important to remember, however, that the impeachment question is a higher order matter constitutionally than prosecution.
This is true for two reasons: (a) because it involves prospective protection of democracy, not retrospective accountability, and (b) because getting Trump out of office is a precondition for his prosecution in any event (See Point (1)).
(12) As such, the instinct to defer to Mueller's and the SDNY's findings on the part of congressional investigators is not an admirable one, though it may well be a functionally useful one (since Mueller is more competent and has more tools than any congressional investigation).
Congress has its own independent duty here, a higher duty, and it should not hide behind an executive branch official in the exercise of it. Put another way, the instinct to make the impeachment question ancillary to the factual output of the criminal investigation is a mistake.
(13) The airplane is landing. Day is breaking. And that's all I got. Good morning! 
