Democrats lay impeachment trap, but will the president step into it?

Certain common aphorisms were never meant to be taken literally. What does not kill you only makes you stronger is a particularly risky principle by which to live. A watched pot will indeed boil. Time does not heal all wounds. Slow and steady does not always win the race. President Trump added a new and, for him, potentially dangerous aphorism this week, when asked about impeachment. He said he was not at all concerned because “you cannot impeach someone who is doing a great job.”

Trump was hopefully making an aspirational rather than a literal point because a president can be entirely successful in office yet be rightfully impeached for committing “treason, bribery, or other high crimes and misdemeanors.” Indeed, no matter how successful a president may be in executing significant policies, the commission of any impeachable offense means, by definition, that he or she is not doing a great job.

His statement was unnerving not only because he has said it before but because Trump is entering the most dangerous period of his term so far. With Democrats now controlling the lower chamber of Congress, the White House is about to be hit with a torrent of document demands and subpoenas from a half dozen committees. Some Democrats have already stated their intentions, intemperately or even profanely, like Rashida Tlaib.

{mosads}Democrats promised to demand answers on his personal taxes, foreign business dealings, family charity, and other areas beyond the Russia investigation. This reflects a strategy that not only targets Trump but counts on him to be successful. They are relying on his description of himself as a “counterpuncher” to supply the grounds of his removal. Yes, Trump could counterpunch himself into getting impeached.

Despite the filing of articles of impeachment on the very first day the Democrats took control of the House, there is not a strong basis for a single article at this time. Thus far, the strongest basis is the money paid to two women to silence them about alleged affairs with Trump before the election. While highly damaging, these allegations can be difficult to prosecute and occurred before Trump took office. An in kind campaign contribution simply is not a strong standalone issue for impeachment.

Likewise, there still is no compelling basis to allege a crime based on obstruction or theories of collusion. That leaves Democrats with a House majority secured, at least in part, on their promises of impeachment but without a clear act that would warrant impeachment. Special counsel Robert Mueller could very well supply the missing “high crimes and misdemeanors,” of course, but the only other possible source is Trump himself. As he demonstrated during the James Comey debacle, Trump has the ability to do himself great harm when he acts impulsively or angrily.

His firing of Comey as FBI director was not the problem. An array of Democrats and Republicans, as well as career prosecutors, felt Comey deserved to be dismissed. Instead, it was the timing. Rather than firing Comey upon taking office, Trump waited months and then fired him after inappropriately questioning him on the Russia investigation and asking for leniency for retired general Michael Flynn. There were reports that Trump also called for the firing of Mueller, Attorney General Jeff Sessions, and Deputy Attorney General Rod Rosenstein, only to be deterred by his staff.

Democrats now have the chance to see if they can trigger an impeachable offense by hitting Trump across a broad range of subjects, including his tightly held business and tax records. Hammered by subpoenas and demands, they are hoping that the unpredictable Trump could commit an impulsive and destructive act. Consider just a few possible “scores” that this strategy could produce if Trump walks into an impeachment trap.

{mossecondads}The biggest score would be a very frustrated Trump ordering the firing of Mueller. Trump could be faced with multiple special counsel reports this year, along with the litigation against indicted individuals in the investigation. If the press is correct, he has repeatedly raised the idea of firing Mueller. That would cross a red line for some Republican senators and add “official acts” to an alleged pattern of obstruction of justice.

Unlike President Clinton, who knowingly lied under oath and was later found by a federal court to have committed perjury, Trump has not spoken under oath and only gave limited answers in writing to a few questions from the special counsel. Now, Congress will be demanding answers not just from Trump but from his son in law Jared Kushner and others in the White House. Lying to Congress is a crime, and if Trump tries to spin facts or gives false information, he would commit an impeachable offense.

Equally dangerous is the appearance of shaping or inducing testimony. Trump has shown a continuing refusal to observe lines of separation from the investigation. He allegedly called Acting Attorney General Matthew Whitaker to complain about the New York prosecutors pursuing campaign finance violations. If he speaks with individuals about their knowledge or accounts, it could be construed as influencing witnesses or subornation of perjury. His former lawyer, Michael Cohen, has already confessed to false statements and suggested that Trump had knowledge of them.

Other potential criminal acts relate to the withholding of documents or acts that could constitute contempt of Congress. Of course, this strategy will fail if Trump maintains simple restraint and leaves the investigations to his own legal counsel. Demands from Congress often raise separation of powers issues that can lead to litigation and delay. While Congress may not like it, it is very difficult to convert such objections into obstruction.

That, however, depends on the proper assertion of privileges protected by the Constitution. If Trump interjects himself into the mix, the rationale along with the defense can be compromised or lost. The scope and subject matter of these inquiries make for an obvious trap for Trump. This is why an aphorism like “you cannot impeach somebody who is doing a great job” can be dangerous. Even if it is true to some degree on a political level, it also is true that a president can do a great job of getting himself impeached, if he walks into the most obvious trap in the world.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified on the Bill Clinton impeachment standard, represented former attorneys general in that litigation, and served as lead defense counsel in the last Senate impeachment trial.