Even if President Trump did obstruct justice by asking James Comey to drop the investigation into his Russia-tainted former nation security adviser, Michael Flynn — a swirling accusation that is far from proved — no prosecutor in all the land has the authority to drag the president into court, and no court has the authority to convict.
Only Congress can bring criminal charges against a president, as part of the impeachment process. And while more and more people are daring to utter that word, the fact that Republicans control both houses makes impeachment a distant possibility. Not once in American history have impeachment charges been brought by a president’s own party.
But focusing on impeachment can be a distraction. There are other options — ways for lawmakers to check Trump’s behavior without bringing formal charges. He could be swept from office without ever being impeached, or forced to change his behavior by stiffer congressional demands.
Here’s a short list of the leading options, starting with the most dramatic:
The 25th amendment. Impeachment isn’t the only way to remove a president. There’s a separate procedure for presidents who haven’t committed crimes but are considered unfit — maybe because they’ve suffered a debilitating stroke, or maybe because they have proved themselves mentally unstable.
First, Cabinet members have to certify that the president is “unable to discharge the powers and duties of his office.” Then, if two-thirds of Congress concurs, the vice president takes over.
It’s a very long shot — because, like impeachment, it requires Republican lawmakers to mount a kind of putsch against their leader — but it differs in one vital way. Congress doesn’t initiate the process. Cabinet members can do that, and once they take the plunge, lawmakers may be more willing to follow.
A special prosecutor. Despite loud calls for a special prosecutor to take over the investigation of possible collusion between Trump’s campaign and Russian intelligence, current law doesn’t actually allow for a special prosecutor. After the perceived excesses of Kenneth Starr’s investigation into Bill Clinton’s sexual activities, Congress decided to drop this whole approach. The nearest equivalent, at the moment, is for Attorney General Jeff Sessions to appoint a “special counsel,” but given his ties to Trump that’s exceedingly unlikely.
However, Congress could resuscitate the special prosecutor provision, handing broad investigative authority to an independent figure tasked with looking into various charges against Trump — including obstruction of justice.
Unlike the FBI director or a Sessions-appointed special counsel, this person would be free of oversight from the Department of Justice, meaning he couldn’t be fired by Trump under any circumstances. And at the end of the process, a final report could either exonerate the President, or give Congress the information — and cover — it needs to act.
Checks and balances. Congress isn’t supposed to line up behind the president, even when both branches are controlled by the same party; the founders expected congressional leaders to have their own prerogatives and to clash with the president on a regular basis. That was the whole idea behind “checks and balances.”
Embracing this role as the checker-in-chief to Trump’s commander-in-chief would allow Congressional Republicans to rein in some of the clearest norm-breaking of Trump’s presidency.
Trump’s refusal to release his tax returns, for instance, would be instantly reversed if the House requested them and read them into the public record. Similarly, Congress could refuse to confirm nominees, or put other Trump priorities on hold, until he set up a proper blind trust, truly divorcing himself — and his nearest family members — from his business empire.
And yet there are signs of a shift. On Tuesday night, House Oversight Committee Chairman Jason Chaffetz asked the FBI to hand over all records of meetings between Trump and Comey. By mid-day Wednesday, his tack had received explicit support from Speaker Paul Ryan and inspired a similar request from the Senate intelligence committee — all signs of a new vigilance in the wake of stories about Trump’s potential obstruction of justice.
Stand above party politics. This one may sound laughably naive, for politicians of either party. But until Republican lawmakers are prepared to confront their president, we are stuck with the status quo. Even the lesser paths of resistance described above require some kind of deliberate tension between Congress and the White House.
And defying the president, even in small ways, means big risks for Republican politicians. Not just in terms of their electoral futures, which could be cut short if turning against Trump means losing Trump voters (some of whom remain unfazed by his actions). For many Republicans, taking on the president risks their whole mission of public service and their deepest beliefs about how to make life better in America.
Whatever your view of conservative tax policy or repealing Obamacare, plenty of lawmakers think these changes are essential to American prosperity. And they fear that a check on Trump’s excesses could imperil these efforts, regardless of whether they jump right to impeachment or limit themselves to slighter actions.
That’s the tragic situation Republicans find themselves in. Even if they believe that the president’s unorthodox and scandal-prone approach to running the country could do severe long-term damage, they also know that stopping him might torpedo what they see as their nation-redeeming agenda.