Under normal circumstances, Donald Trump’s lawyers would be preparing him to be indicted, or he’d be under indictment already.
A plain reading of the sentencing memo federal prosecutors in New York wrote for Trump’s former lawyer, Michael Cohen, reveals that the Justice Department believes Trump committed at least one felony in 2016, when he ordered Cohen to pay hush money to his former mistresses, and facilitated the payments.
Both Trump supporters like Andrew McCarthy, who was once a federal prosecutor in the same New York district, and Trump critics, like former FBI Director James Comey, who was once the top federal prosecutor in that office, agree on the gravity of the situation. The government, Comey said, doesn’t include allegations like the one in the Cohen memo unless it is “seriously considering” charging the person.
The only thing standing between Trump and an arrest, bail hearing, and trial or plea, is the tragic fact that he is the president, and the Justice Department has essentially contrived a rule that makes it difficult if not impossible for federal prosecutors to indict sitting presidents. In fact, DOJ holds that the Constitution prohibits such indictments.
That opinion—logically indefensible, completely atextual, and never tested in court—doesn’t place Trump completely out of danger. But in a perverse way, the prospective nature of the legal jeopardy Trump faces does create new and unacceptable risks for the rest of us, and those need to be addressed, with House Democrats in the lead, before they break the democracy.
The government’s operating theory is that Congress would impeach and remove a president who committed crimes that needed to be prosecuted, at which point the normal course of justice would resume. It does not contemplate the possibility that a supine Congress would simply shrug at the president’s criminal activity and proceed as though nothing happened.
The crime prosecutors say Trump committed in 2016 carries a five year statute of limitations. Were he to be removed from office quickly or lose his campaign for re-election, those prosecutors could, and likely would, swoop in and charge him with violating election law. Trump’s freedom—his bodily autonomy—now appears to turn almost entirely on his ability to remain in power through at least 2021.
By allowing Trump to serve in limbo, temporarily immune from justice, Congress and DOJ have transformed the stakes of the 2020 election in Trump’s mind into a make-or-break, can’t lose contest to preserve his own liberty. And if he concludes that he can only hold power by breaking America, then he will break America to keep himself out of prison.
The 2020 election is going to be poisonous no matter what. Trump is an immoral and toxic person who can’t grapple maturely with even the prospect of defeat. But what few limits of decency and ethics he places on himself, or others place on him, will fall if the consequence of losing isn’t just humiliation, but imprisonment. It also creates a near certainty that if he does lose, he will refuse to accept the results of the election.
If Trump had even a modicum of shame or a trace of public spirit, he would begin phasing down right away. When amid the Watergate scandal, prosecutors caught Richard Nixon’s vice president, Spiro Agnew, at the center of a completely different criminal bribery conspiracy, Agnew was publicly defiant, but his lawyers negotiated a surrender: Agnew would resign, taking himself out of the line of succession, if prosecutors agreed not to charge him for any crimes that would yield jail time.
Trump will not resign, particularly as DOJ rules essentially hold that he’s unaccountable for his crime, if he stays in office until 2022. It’s hard to imagine Trump resigning even if he believed Vice President Mike Pence would grant him a corrupt pardon upon succeeding to the presidency. If we’re to preserve a system, if only in theory, in which nobody is above the law, something else will have to change.
The proper thing would be for Congress to begin an impeachment inquiry next January—a wide ranging one, but inclusive of the allegation in the Cohen sentencing memo. Such an inquiry would not be controversial on the merits, because the alleged conduct cuts right to the heart of why Congress has impeachment power to begin with. Trump cheated to win the presidency. If Congress responds not just by imposing no penalty but by not even attempting to impose a penalty, it will create terrible incentives for Trump and all future presidential candidates. Exempting Trump from an inquiry (because he remains popular with Republican voters, or because Senate Republicans would never vote to remove him) would be a cowardly abdication, and would normalize conduct that should be impeachable.
If House Democrats refuse to confront Trump in this way, they could nevertheless remove the perverse incentive Trump now faces by closing the loophole DOJ created. If DOJ will not withdraw or revise its opinion on indicting sitting presidents, Congress can pass legislation to stop the statute of limitations clock on all crimes during time served in the presidency or vice presidency. The five year statute of limitations on Trump’s election crime would thus extend years past Trump’s presidency even if he serves two full terms.
Taking these steps would unrig the game, so the country would no longer be locked in a dangerous contest with an unscrupulous man who has everything to lose. But the current circumstances can not stand through the election. The stakes are just too dire.