It’s Not Enough
Michael Cohen, the personal attorney to Donald Trump, has pled guilty to violating Federal Campaign Finance Laws during the 2016 election campaign. Under US Code Title 52, the possible penalties set forth are:
(1)(A) Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure-
(i) aggregating $25,000 or more during a calendar year shall be fined under title 18, or imprisoned for not more than 5 years, or both; or
(ii) aggregating $2,000 or more (but less than $25,000) during a calendar year shall be fined under such title, or imprisoned for not more than 1 year, or both. (52 USC 30109).
This is by definition a “felony” crime.
Cohen established a “dummy corporation” for the purpose of paying “hush money” to keep women who had extra-marital sexual affairs with Trump quiet during the run-up to the general election in November of 2016. In paying off the women, he used his own money to make illegal campaign contributions. In the indictment, the US Attorney stated that the evidence showed that he acted with the knowledge of, for, and under the direction of “Individual 1:” Donald J. Trump the current President of the United States. This makes the President a “co-conspirator” in the commission of a felony, and should put him a risk for indictment on the same charges.
Except, that the Department of Justice has an internal ruling that does not allow the serving President to be indicted. There are long and complicated Constitutional arguments about whether that is a valid finding; regardless, the rule is binding on all Federal Prosecutors, and is not likely to change under the current DOJ administration. They will not bring such an indictment to court.
The alternative set forth in the Constitution is to remove the President from office through the impeachment process, and after he is out, hold him accountable in the courts for his actions. This is certainly what the authors of the Constitution intended as the action needed to be taken against a “criminal” President. Many commentators and “resistance” activists are calling on the new House of Representatives to begin impeachment proceedings when the Democrats take the majority in January. It seems like a clear “reading” of the process.
But impeachment is a political process in the Congress, not a judicial process in the Courts. As a political process, the outcome of impeachment is determined by votes, and votes are at least in part determined by the “will of the people” as reflected in the decisions made by Senators. To put it more succinctly: Senators are not going to vote to remove a President if there isn’t a reasonable amount of popular support for removal.
This was evident in the Clinton Impeachment in 1998. Clinton was impeached by the House of Representatives on two charges, both coming from his sexual affair with a White House intern. He was charged with perjury, lying under oath about the affair (“…it depends what the meaning of the word is, is,”) and with obstructing justice by orchestrating a cover-up of his actions. The perjury count was passed by the House of Representatives (a simple majority needed) 228 for and 206 against, while the obstruction charge was 221 for and 212 against. Two other counts failed to pass. The votes were near party line in the Republican House, with a few of each party voting across lines.
The closeness of the votes showed that there was limited support for impeachment nationally. The action was seen by many as a partisan attack of Republicans against the Democratic President. And it was also seen as imposing a “national standard of morality” on the private actions of Bill Clinton, a standard that struck many as hypocritical with the immediate two past Republican Speakers (Gingrich and Livingston) both guilty of extra-marital affairs (they were replaced by Dennis Hastert as Speaker, who was later found to have molested boys as a coach before he ran for office.)
Republicans had a 55 to 45 majority in the Senate, but removal required a two-thirds vote (67) of the Senate. The “trial” lasted a month, and after deliberations both articles failed: perjury 55 not guilty to 45 guilty, and obstruction 50 to 50.
The opposite was true in the removal/resignation of Richard Nixon in 1974. There was strong Republican support for the President, until the release of White House tapes showing that not only did Nixon know about the cover-up of the Watergate break-in, he actually planned and orchestrated it. With this undeniable evidence, the Republican Congressional leaders (then in the minority) went to Nixon and told him he would be impeached and removed, urging him to resign instead. While impeachment articles were voted out of the House Judiciary Committee, Nixon resigned before the full House could vote on them.
President Trump may well have orchestrated a felony conspiracy to violate campaign laws and led a cover-up. But many of his supporters, including members of US House and Senate, feel that this is all part of the “sex stuff” that was known before the election. Their argument: the people had the opportunity to vote on the issue, and Trump won the election. While there are good arguments for impeachment, the “political” part of the process isn’t ready: Yet.
There is much more to come. The Mueller investigation has indicted a range of Russians and others for direct involvement in Russia’s attack on the US election. Should Mueller be able to show the President’s involvement in that, or show that the President is under the influence of Moscow due to his personal finances; that’s a different “political” story.
Cohen’s and Trump’s actions in the campaign were illegal, but it’s not enough. It’s not enough for impeachment and removal, and will be seen, like the Clinton impeachment, as a partisan “witch hunt.” The President and his lawyers are already laying the groundwork for that defense. We: Democrats, “resistance members,” the American people; need to wait for the “real stuff;” the Mueller evidence about a US President who may have conspired with a foreign nation to win an election, or may be under the financial “thumb” of Russia. That will be enough.
