Regardless of one’s political party, it is hard to imagine that the Trump administration will survive its self-inflicted crush of lies, ethical lapses and incompetence much longer. Chaos is no way to run a popsicle stand, let alone the United States government. Because this presidency may well implode, we need to start thinking about how to minimize the inevitable trauma on Trump supporters and America as a whole.
The reality is that, as a legal matter, both indictment and impeachment are fully on the table.
{mosads}No law precludes indictment of a president, and the Constitution does not address whether it’s permissible. DOJ’s Office of Legal Counsel — which advises the White House on constitutional questions — issued a couple of opinions during the Nixon and Clinton administrations which concluded no. Leon Jaworski and Ken Starr — investigating Nixon and Clinton, respectively — answered yes. Special Counsel Robert Mueller could seek a revised opinion from the OLC to clarify, for example, whether an indictment during Trump’s tenure would be constitutional in order to toll the statute of limitations, with a trial taking place after the president leaves office.
The Supreme Court’s decision to allow civil litigation to go forward against President Clinton is strong precedent that being sidelined from official duties is not itself a reason to render presidents immune from the judicial process. Whether a criminal — versus a civil — process could bind a sitting president remains an open question. Because its resolution could decide President Trump’s fate, there is a conflict of interest around any Trump pick being confirmed to the Supreme Court until after the Mueller investigation wraps up. The conflict is one that only Congress can address, but it appears to be fair game under the wait-and-see rule that Mitch McConnell cooked up to nix Merrick Garland’s nomination.
The House of Representatives has the sole power to impeach, which basically means that it can issue what amounts to a congressional indictment, which then goes to the Senate for trial. Only the president, vice president and “all civil Officers of the United States” are covered, and the penalty for conviction by two thirds of the Senate is removal from office. Nobody goes to jail. The Constitution does not state that there must be evidence of an indictable crime: The bar for impeachment is “Treason, Bribery, or other high Crimes and Misdemeanors.”
Treason only applies if the United States is at war. Technically, the Korean War never ended, but we are not at war with Russia, so colluding with Putin would not count.
Bribery is the taking or giving of a bribe, i.e., a quid pro quo that exchanges something of value for favorable treatment by a public official: If you do “x” for me, I will do “y” for you. Bribery generally requires a showing of intent, but for impeachment purposes, whether a bribe must be related to official duties is unclear. Thus, the hush money payments made to Stormy Daniels and Karen McDougal may not qualify.
Although “high crimes and misdemeanors” is also undefined, historical sources at the time of the Constitution’s ratification, as well as historical practice since then, offer some insight. In 14th to 18th-century England, the terminology was equated with common law crimes as well as political malfeasance, such as “procuring offices for persons who were unfit, and unworthy of them” or violations of the officeholder’s “duty and trust.” So, today’s Congress would not have to satisfy itself that the president committed a crime in order to impeach.
Only two presidents have been impeached in the history of the United States. Andrew Johnson was impeached in 1867 for firing the secretary of War in violation of a law that prohibited his removal (the Supreme Court later held that the law itself violated the separation of powers).
Bill Clinton was impeached for perjury and obstruction of justice regarding his relationship with intern Monica Lewinsky.
Neither president was convicted in the Senate. Although the House Judiciary Committee voted three articles of impeachment against Richard Nixon — for obstruction of justice, using the FBI and the IRS for political advantage, and failing to comply with subpoenas — he resigned before it went to the full House.
What does this mean for Trump? Based on historical and legal precedent, he is well within the ballpark for either an indictment or impeachment. To be sure, many people have withheld judgment on whether he “colluded” with the Russians unless and until hard evidence is made public to prove it. That’s fine and makes sense, but it’s really beside the point.
Any good manager knows when a particular hire is just not working. The federal government is a massive bureaucratic organization — a challenge for any leadership team. And by any measure, it’s in a severely compromised state under this president.
People associated with the White House and the 2016 Trump campaign have been indicted or pleaded guilty to federal felonies. The intelligence community is singing a chorus of red-light warnings about the ongoing Russian attacks on our core democratic systems, while the president publicly blinks that reality.
Meanwhile, Robert Mueller continues to churn out indictments that seek accountability for the unprecedented assault on our electoral process and our way of life. Yet, even for the most loyal of public servants like Mueller and Deputy Attorney General Rod Rosenstein, looming dismissals remain an ongoing political threat.
Of course, we don’t get to know how things will actually go down. But it’s not looking good for this White House. Many of us have watched a neighborhood restaurant cling for dear life, despite its poor food and terrible service. One day, we drive by to find the front door boarded up. It’s a fact of life that organizations can’t continue to run the way the executive branch is being run right now and remain viable.
Rather than seizing on each mini-crisis, lawmakers, journalists and everyday people need to start thinking about the bigger picture. How would team Trump take the blow of a failed presidency? Very hard.
Now, the adults in the room need to step up and send a message: This will be difficult for many of you, but you all need to understand that there will be other leaders. Trump isn’t the only one out there.
Then, those leaders need to find the courage of conviction and come forward with an alternative vision for people who mistakenly believe that Trump is the only one who really “gets” them.
Politics is a buffet of options, not a do-or-die proposition. When things don’t go our way, we need to regroup and find opportunities in the disappointment. Let’s hope that the phoenix will rise from the ashes of this crisis in American democracy. If we can see that future for ourselves from both sides of the aisle, we might well get there.
Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. Her forthcoming book, “Constitutional Literacy: What You Need to Know About the Constitution Without Going to Law School,” will be published by HarperCollins in the Spring of 2019. Follow her on her Twitter at @kim_wehle.