Now that Trump has been more or less accused of a crime by his own Justice Department, we must consider where we go from here. There’s been a lot of discussion about indictments, impeachments, etc., and, at times there’s talk as if Trump’s downfall is inevitable. . Things are moving fast, and I may have this all wrong, but I’m going to put myself on record now. I’m sort of hoping I’ll be proven wrong in the long run, but I doubt it. This is a long post, but since no one reads this blog anymore anyway, I can indulge myself.
Back in what now look like the good old days, when we had a criminal named Nixon in the White House, I became certain that he would ultimately be removed from office once the existence of the tapes was made known. It was a given that they would contain a “smocking gun”, and it was also pretty much a given that Congress would do the right thing once Nixon’s guilt became clear.
While I’ve seen a lot of stuff on the net to the effect that Trump is going down, I’ve yet to see any reasonable scenario as to how that’s to be accomplished. That is, I haven’t seen any suggested pathway that leads to the end of the Trump presidency during his first term. I should add that I’m not sure I want him to leave office during this term, not unless he takes Pence with him.
He will not be indicted. I am an agnostic about whether a sitting president can be indicted. I incline toward the opinion that he can be, although perhaps the trial would have to await the end of his term.
I’m going to stray a bit here and point out that I think Laurence Tribe’s rationalefor claiming the constitution assumes a president can be indicted doesn’t hold water. Tribe says:
Just think about it: The president and vice president run as a ticket. No president selects a vice president who wouldn’t strongly consider doing for him exactly what Vice President Gerald Ford did for President Richard Nixon: namely, give the president a full pardon shortly after he becomes the former president — whether that sudden reversal of fortune occurs upon the president’s being turned out by the voters, or upon his being impeached and removed, or upon his resigning under the threat of such ignominious removal.
It’s crazy to assume that the framers of the impeachment power would have created a system in which even the most criminally corrupt president could permanently escape full accountability. Immunized from criminal trial while serving in office (as the ostensible Justice Department policy would require), such a president could count on receiving a get-out-of-jail-free card upon his exit. For he would leave behind him a newly minted (albeit unelected) president wielding the power to pardon any and all “offenses against the United States.”
There’s a glaring problem with the above. The framers did not envision anyone “running as a ticket”. In fact, truth be told, they didn’t contemplate anyone “running”. See, e.g., Thomas Jefferson pretending to be above the fray while James Madison ran his campaigns. But more importantly, they actually expected the electoral college to work in the way it was designed, which meant that there was no popular vote and that the individuals who got electoral votes might have no connection with one another, or might even be political rivals. See, e.g., Thomas Jefferson serving as Vice President while John Adams was president. Jefferson and Adams had been fairly close friends when they were both in France, but by 1796, they were definitely on opposite sides of the political fence. Adams would have had no reason to believe that Jefferson would pardon him if he went on a crime spree.
What the founders didexpect, in my humble opinion, was a Congress highly suspicious of any presidential overreach. A Congress which, regardless of party considerations, would impeach any felonious president, making the issue of prior indictment somewhat moot. Tribe may, ultimately, be right that a president can be indicted, but his history is a little weak.
Let me stray a bit more. The Founders also expected a judicial system in which the judges were at least somewhat removed from politics. Those days are gone. We can hope it’s not a permanent thing, but unless something radical happens, it will be the case during the entire Trump administration. Right now Trump is most obviously (in the sense of the evidence being out in plain sight) guilty of campaign finance violations. Not so long ago, Justice Kennedy declared in Citizens United that, given the fact that there was no evidence at all that money had any influence in politics, certain restrictions on political spending just couldn’t jibe with constitutional principles newly discovered by the Republican justices. It wouldn’t be a stretch for the court to rule that limits on campaign donations, and the obligation to disclose those donations, are also unconstitutional. In other words, it wouldn’t matter that Trump clearly broke the law, because the Supreme Court could rule that, the law being unconstitutional, it’s perfectly okay to break it.
Back to the main theme.
As I said, I haven’t heard any scenarios that are likely to play out.
Whatever the consitutional merits may be, there is a Justice Department rule that forbids indicting a sitting president. Mueller is subject to that rule, and so are the prosecutors in the Southern District of New York. There is little if any reason to believe that the rule will be modified by whoever is running the Justice Department for the next two years. It is therefore unlikely that Trump will be indicted while he is in office, or that he will be brought to trial during his term if he is indicted. If he is indicted, my guess is that it would be a prophylactic measure to stay the statute of limitations.
There are probably multiple state charges that could be brought against Trump, but I think the same general considerations apply to them. It’s unlikely they would or could be resolved before the next election, given the endless pretrial appeals that can be expected. While such charges, one would hope, would add to the likelihood that he’d lose the election (I don’t think a Republican primary challenger is in the cards), consider that two loathsome Republican Congressmen just got reelected despite the fact they’ve been indicted on serious charges.
I’ve seen some speculationthat Trump might cut a deal to avoid prison, something akin to what Spiro Agnew did, trading a resignation for reduced or dismissed charges. I don’t see that happening, primarily because I don’t think formal charges will be pressed against him, and, lacking those, I don’t believe Trump can be brought to believe that he can’t get away with his crimes if he just hangs tough. He’s a lifelong criminal, protected in the legal realm by his wealth and in his psyche by his narcissism. He has been a lifelong beneficiary of the fact that we don’t put rich people on trial in this country unless they do kill someone on Fifth Avenue, in any other even, we look the other way. As an elected official, his actions have now been subjected to scrutiny, scrutiny to which the merely wealthy are rarely subjected. His narcissism makes it hard for him to understand that the rules (may) have changed so far as he is concerned. I don’t think he will ever accept that basic fact, and in his case, for the reasons I’ve given, he may be right, at least until 12:01 PM on January 20, 2021. If, on the other hand, an indictment is handed down in order to avoid the running of the statute of limitations, Trump may in fact try to work a deal. Given his track record on deal making, he’d probably end up in prison for the rest of his life, while claiming he’d beat the rap.
He will not be impeached. He should not be impeached, unless conviction in the Senate were a sure thing, and that is simply not the case. Senate Republicans have demonstrated beyond doubt that they will look the other way regardless of the nature of Trump’s criminal acts. They have nothing to lose by voting to acquit, and everything to lose by voting to convict. Unlike the Democrats, they fear their base, and rightfully so. Several have made it clearover the last few days that they don’t believe Trump did anything wrong, but if he did, well, it’s no big deal. Maybe if he did kill someone on Fifth Avenue they might change their position, but that’s highly doubtful.
Given the odds against a conviction, the House Democrats can and should continue to expose Trump’s criminality, but an impeachment would be a waste of time, and an acquittal would only serve to solidify Trump’s base.
As I said above, I think we’re safer with a lame duck Trump (provided the Democrats don’t do something really stupid and nominate a Biden or someone equally uninspiring) than with a Pence. Speaking of Pence, there has been some talk of Trump dumping Pence from the ticket. Assuming Pence is not indicted (he’s in up to his neck in the Russia stuff) I can’t see that happening. I’ve seen speculation that Trump will resign the presidency the morning of the 20th of January, 2021, so that Pence, as President for a few minutes or hours, can pardon him. Pence wouldn’t have much incentive to do that if Trump had dumped him. For that matter, he wouldn’t have much incentive even if Trump didn’t dump him; he’d be tarnishing his own reputation, such as it is, to no good end.
In sum, we’re stuck with him until the end of his term, unless he is indicted and opts to resign to avoid jail time. Assuming that doesn’t happen, it is not impossible that he will be reduced to a sort of irrelevance if the Democrats play their cards right, if it’s obvious that he’ll be facing charges at the end of his term, andif it’s obvious that he will not get another term. That would require those around him to quash any attempts on his part to salvage his personal situation by starting a war, either of the international variety or of the civil.