Trial By Election

CHANGE AGENCY-Assume, for the sake of argument, that Mueller’s team believes Donald Trump is a crook. They’ve discovered evidence of something  --  obstruction as president, collusion as a candidate, money laundering that leaves him compromised, whatever -- that convinces them Trump should be removed from office.

 

Problem is, they’re not building a case against an ordinary official. The presidency is unique. There are many ways this could go wrong. 

The special counsel’s legal options are limited. Lawyers debate whether it’s possible to indict a sitting president, but even if it is, the legal case for obstruction of justice is weak. 

Elected officials’ constitutional duties cannot be criminalized. As Andy Grewal explains in the Yale Journal of Regulation, if a Member of Congress accepts a bribe to vote a certain way, the vote itself is still legal. The bribe is illegal, and the representative or senator could be charged for that. But since voting on bills is in the Constitution  --  with no specifications as to how Members decide --  it cannot be illegal. 

Similarly, the president cannot be prosecuted for firing the FBI director, no matter the cause. If Trump accepted a bribe to fire Comey, that would be illegal. But the firing itself would not be, because executive branch personnel decisions are the purview of the president. 

Maybe you think this is a legal loophole. But that doesn’t matter. The justice system is based on rule of law as written, which means Mueller probably can’t indict Trump for obstruction. 

Indictment v. Impeachment 

The constitutional provision for removing a president is impeachment. Not charges filed in a court of law, which may not be possible. Nor the 25th Amendment, which is designed for when the president becomes incapacitated by a heart attack or stroke. 

Meuller’s team knows this. Trying to indict the president is risky. It could easily fail. And filing charges would trigger a constitutional crisis. They’d need a better strategy. 

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Tough legal case for obstruction of justice might be weak, the impeachment case is strong. Bill Clinton got impeached for obstruction --  for lying under oath in a deposition about Monica Lewinsky  --  and Richard Nixon would’ve been if he hadn’t resigned. Trump telling Comey to let Michael Flynn go, asking for loyalty, firing Comey, and publicly stating he did it to make the Russia investigation go away looks like a solid case based on the Nixon/Clinton precedent. 

While criminal charges cannot be brought without the president accepting a bribe or doing something else that’s not part of his legal duties --  and maybe cannot be brought at all  --  the impeachment case relies on the “take care” clause. According to Article 2 of the Constitution, the president must “take care that the laws be faithfully executed.” Arguably, Trump abused his power when protecting Flynn and firing Comey. 

Thursday’s reports that Trump tried to fire Mueller, but backed down when White House Counsel Don McGhan threatened to resign, add credibility to the accusation that Trump did not take care to faithfully execute the law. 

But there’s a problem: Republicans control Congress. Representatives Devin Nunes, Matt Gaetz, and others are trying to discredit the investigation, as is Fox News and much of right-wing media. House leaders Paul Ryan and Kevin McCarthy are helping, or at least doing nothing to counter those efforts.

Additionally, 81% of Republicans approve of Trump, and most conservatives like his policy record. 

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There’s no way they impeach. Not for obstruction, not for abuse of power, not for using his office for his and his family’s personal enrichment. Maybe not even for a recording of Trump and Putin plotting to steal the election (and I doubt any evidence relating to Russian collusion is anywhere near that incriminating). 

Trial by Election 

The only way Trump gets impeached is if Democrats take control of the House in the 2018 midterms.

So as Mueller formulates a strategy, Election Day is the one fixed date on the calendar. Try the case in court or the Republican-controlled House and he’ll lose; but try it in a Democratic House and he could win. In November, the public will effectively render a verdict on the special counsel investigation. 

And if the election is the trial venue, it’d be awfully dumb not to present the case before the vote. Almost like a district attorney declining to examine any witnesses or make a closing argument.

The ideal time to start would be a couple months before Americans go to the polls. September, maybe August. 

Make the case too early and it will get swept along in the hyperactive news cycle, fading into a new normal. Trump supporters and pro-Trump media will shrug off whatever comes out and move the goalposts. It won’t be long until they repeat the argument so often they internalize it. Can’t give that time to settle in. 

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In September, or even October, indict Jared Kushner and Don Jr., and see how the president reacts. Present the investigation’s findings to Congress. Show the public whatever evidence convinced you Donald Trump is a crook who should be removed from office (remember, that’s the hypothetical premise on which this entire thought experiment rests). 

It would dominate public discourse in the weeks leading up to the midterms. Democrats will say the evidence shows Trump should be impeached, Republicans will say otherwise. Voters will decide.

If Democrats take the House, they can impeach with a simple majority. But it takes 2/3 of the Senate to remove the president from office, and there’s no way the Democrats get that in 2018. 

They might not even win the Senate. Though Republicans currently control it 51–49, we’re six years out from Obama’s reelection, and 25 of the 33 seats up for a vote are currently held by Democrats, some in states Trump won. If Democrats win all 33 --  which won’t happen -- they’d control the Senate 57–43, 10 votes shy of a 2/3 super-majority. 

Therefore, even if Democrats give Republicans a midterm shellacking, there’s a decent chance Trump will not be removed from office. The evidence would have to be so persuasive, and the public outcry so overwhelming, that a dozen Republican Senators vote for removal (or make it clear they will, prompting a Nixon-like resignation). 

The special counsel’s case may fail no matter what happens in the election. But for it to stand a chance, it needs a Democratic House. 

Of course, all this is moot if Mueller’s team didn’t find anything on Trump that convinced them the president should be removed from office. 

But if they’re going to bring a case, the smartest strategy is to present the evidence before the midterms. And this holds true whether or not Trump fires Mueller  --  perhaps at the cost of McGahn, Deputy Attorney General Rod Rosenstein, and other officials  --  because the special counsel’s office could leak whatever it discovered. 

Either way, it’s trial by election.

 

(Nicholas Grossman is a.Poli Sci professor at U. Illinois, Editor-at-Large of Arc Digital where this first appeared. He writes on politics, national security, and occasional nerdery.)