The broader implications of Goldsmith’s analysis are especially worrying in light of the fact that conviction on impeachment seems highly improbable with Republican control of the Senate.

That is precisely why Goldsmith is right. The law cannot turn on whether a particular Congress is made up of feckless bozos. We must presume that Congress will do its duty, or we will vote them out. If we cannot make those assumptions, we have no business governing ourselves.

The clear statement rule is a legal nothingburger, an evasion that allows the courts to duck a harder question. Goldsmith writes: “I have not addressed whether Congress has the constitutional power to regulate the president’s Article II powers with a clear statement, and thus have not claimed that the president is constitutionally immune from anything.” Thus, it is a mistake to say that the clear statement rule puts the President “above” the law. Consistently with the clear statement rule, Congress can make any law it wants apply to the President just by saying so. But, and it’s an important but, Article II may preclude the Congress from handcuffing the President in the exercise of any particular power, whatever Congress’s intent. The clear statement allows the court to dodge that bullet by following established practice of not reading statutes to raise constitutional issues if at all possible.

Mueller said in his report that the clear statement rule does not apply to obstruction, but he said in his presser that it would be “unconstitutional” to indict him (because he is a sitting President). I tend to agree with Goldsmith here that criminalizing obstruction by Presidential action (firing Comey, say) is a bad idea. You with short memories need only put the shoe on the other foot to see why any of these chants of “Lock him up!” are as wrong-headed as they are well-intentioned. What happens when the President is good and the Congress is bad? (See “Ken Starr.”)

My sense is that Mueller was being a bit disingenuous because he had the “no indictment” rule to mitigate the implications of his opinion. I believe he wanted a reason to report what he found, whether or not it was a crime, and he felt hard-pressed to report it at all if it could not even be a crime. Mueller could not “punt” on whether Trump committed a crime if he believed there was no statute that applied to him. For the same reason that he could not say “I found this list of actions that would be illegal if a minor committed them,” he could not say “I found this list of actions that would be illegal if a non-President committed them.” So, to get the facts out there, he opined that the obstruction laws did apply, knowing that his opinion does not matter, because he was not going to talk about the implications.

AG Barr disagreed with Mueller’s reading of the clear statement rule, and there’s nothing scurrilous in his doing so. Having determined as a matter of law that the President could not have committed obstruction by reason of the conduct enumerated by Mueller, he announced that the President had not committed a “crime.” That seems right for the reasons Goldsmith gives in his article.

I don’t see what any of this has to do with impeachment. Abuse of Constitutional powers is impeachable whether or not it is criminal. But the clear statement rule, if applied, would protect Trump from prosecution for obstruction once he leaves office. Maybe that’s the chance we take when we elect a creep because the grown-ups in the room have behaved like children. (That’d be you, Obama-era GOP.) As regards impeachment, don’t ask whether the Senate will convict. Ask instead whether, if we don’t vote this bastard out in 2020, we can really fault our representatives for not voting him out now.