I said Monday that no one knows anything about what’s going to happen to this president in the wake of federal prosecutors alleging in court Friday that Donald Trump committed two felonies. Yes, a lot of people are saying with a lot of confidence that they know he’ll be impeached, that he’ll be removed, that he’ll be indicted. But fact is, no one knows. That includes people saying nothing will happen to him.
Why? We have not been here before. No sitting president has ever been accused in open court by government attorneys of breaking federal law. Yes, Richard Nixon was found to have paid hush money to operatives who broke into the Watergate Hotel Complex looking for documents that might damage his 1972 Democratic rival. But those crimes came to light after John Dean revealed the existence of Oval Office tapes. In them was proof of criminal wrongdoing, but there had not been prosecutorial allegations requiring proof. In this sense, what’s happening now is different from Watergate. And for that reason, it is historically unprecedented. (Allegations may be forthcoming, of course, but we don’t know yet if that’s the case—stayed tuned.)
All that said, there is something happening right now that we can talk about with real certainty—that criminal indictment is a greater and more immediate threat to this president than even impeachment or removal. Yes, there is a debate going on about whether a sitting president can be indicted, but what’s not up for debate is this: that Trump would almost certainly be facing the same legal jeopardy that his collaborators are now facing. The only thing preventing that is the presidency.
Let’s put that another way. No matter what happens from this point onward—no matter what the Mueller inquiry reveals or doesn’t about conspiracy with the Russian government—the fact is that prosecutors have evidence to allege that “Individual-1,” aka Trump, ordered Michael Cohen to break campaign-finance law and lie about it. Even if you believe, as Republicans do, that those crimes are unworthy of impeachment and removal (even if less severe crimes were enough to impeach Bill Clinton), few would say they should go unpunished after Trump leaves office.
In other words, the president now has a great deal of incentive to remain president, to avoid resigning for as long as he possibly can, and even to win reelection in two years, because being president is almost certainly the only thing standing between him and arrest, prosecution and prison. As Democratic Congressman Adam Schiff, the incoming chair of the House Intelligence Committee, told CBS on Sunday:
There’s a very real prospect that on the day Donald Trump leaves office the Justice Department may indict him, that he may be the first president in quite some time to face the real prospect of jail time. We have been discussing the issue of pardons that the president may offer to people or dangle in front of people. The bigger pardon question may come down the road as the next president has to determine whether to pardon Donald Trump.
Isn’t it interesting that Schiff would bring up the “next president”?
It could be, though I’d need to see more evidence to be sure, but it could be that Congressional Democrats are already exploring a new line of attack on this president, which, if I’m right, is rather brilliant. That line of attack would go something like this: the only reason Donald Trump wants to be reelected is to avoid prison.
It sounded so good to Democratic Congressman Eric Swalwell that he said it four times on NPR on Monday: “If the president has a very high degree of criminal exposure once he leaves office and the only reason he's not being prosecuted is because of a Department of Justice policy, that would fall on him once he left office. You don't want a president in a position who could, you know, act out or be erratic because he's fearful that losing an election would send him to jail.” He added:
And so I think we have to be mindful of that. I think there's an opportunity, though, to also look at extending the statute of limitations, you know, as they exist to just pause and not run until a president leaves office because right now, it looks like if President Trump is not re-elected, he could potentially go to jail. If he is re-elected, he could avoid going to jail. We don't want presidents to, you know, be making decisions based on their, you know, jail exposure.
Making this line of attack so brilliant is that you really don’t want a president willing to use the awesome power of the presidency to deny justice. That’s what despots do, not leaders upholding the rule of law. So when Trump does abuse his power, and there’s no reason to think he would not, then he’s proving the attack against him.
The line is brilliant also because the debate as of right now isn’t about whether Donald Trump committed federal offenses (the Republicans do not appear to be contesting this point much). It’s about whether any president can be held accountable while he’s president. Well, the Democrats can say, if Donald Trump can’t be held accountable while president, then he wants to stay president in order to deny justice.
Again, nobody knows what’s going to happen, but there are some things we can count on. One is that Trump broke federal law. Two is that anyone who is not the president would be in deep trouble. Three is that in being president, Trump denies justice.
So the Democrats have incentive to keep hammering at this point. Indeed, it may be, in the end, a politically preferable strategy, as it would push the electorate to push Trump out rather than take the extraordinary risk that comes with impeachment.
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