Thread by @ReginaldOhLaw

Mueller made findings and conclusions regarding whether Trump engaged in criminal conduct based on federal criminal law.

That makes Mueller's report extremely narrow in scope.

Why? Because an impeachable offense doesn't have to be a federal crime.

Thread

First, let’s be clear about what impeachment is about.

Impeachment is a non-criminal process that is solely about removing a president from office. See Art II, Sect 4.

"Judgment in cases of impeachment shall not extend further than to removal from office." Art I, Sect 3, Cl. 7.

And that's it.

Basically, it's about whether the president should be fired from his job. Period.

And as we all know, for most jobs, you can be fired for conduct that doesn't rise to the level of a crime. Same thing with impeachment.

Impeachment does not have any direct criminal implications.

If a president is impeached by the House and "convicted" by the Senate, it doesn't mean he's been found guilty of a committing a crime and therefore subject to criminal sentencing & possible incarceration.

The debate over Mueller's findings and conclusions about obstruction of justice seems to miss that important point.

You don't have to establish that a president committed a federal crime beyond a reasonable doubt in order impeach him/her based on the underlying conduct.

This is important because the debate over the Mueller Report has focused on whether there is sufficient evidence to prove Trump committed obstruction beyond a reasonable doubt.

That focus makes sense if the report is to determine whether Trump should be criminally indicted.

That makes less sense if the report is to determine whether Trump committed impeachable offenses and should be fired as POTUS.

In part that's because in non-criminal proceedings, the burden of proof is a much different standard than "beyond a reasonable doubt."

It's typically "a preponderance of the evidence." While the reasonable doubt standard may require say 90% certainty, the preponderance standard requires only 51% certainty.

What this all means is many of us are asking the wrong questions about the Mueller Report.

What we should be asking is if the facts and findings show that Trump is unfit to be president, whether or not the actions in question amount to federal crimes.

A person is unfit to be POTUS if he abused/abuses power in such a way that the actions, "whether criminal or not, truly pose a threat to our democratic system." @TribeLaw, To End a Presidency, p. 53.

Does the conduct "subvert core tenets of the U.S. governmental system?" (p. 42)

Those are the questions that Congress and the public should be asking.

Rather than focusing solely on the technical legal questions, Congress should focus on whether the underlying conduct subverts the rule of law & the public's confidence in our government & its officials.

The elements of the federal crime should operate primarily as a guide to that inquiry.

With that understanding, the next step for Congress is to obtain the full, unredacted Mueller Report, to have Mueller testify before Congress, and for Congress to ask the right questions.

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