Justice is closing in on Trump. Literally.
Thanks to information about hush-money payoffs that could result in charges of bank fraud, wire fraud, or campaign finance violations, Federal investigators will be reading through the paper and electronic records of Trump’s longtime fixer, Michael Cohen.
Prosecutors are likely to find evidence of crimes in connection with these payoffs, and no doubt in relation to Cohen’s other activities, such as meeting with Russian agents in Prague during the 2016 campaign, soliciting a campaign contribution from a Ukrainian steel magnate, negotiating a deal for a Trump Tower Moscow at the beginning of the campaign and floating a Russian-Ukraine peace plan a week after Trump took office, working with Kremlin-backed oligarchs to develop Trump-branded projects in Georgia and Kazakhstan, and a history of connections to the Russian mob.
Some of these crimes may implicate Trump directly. There may be incriminating recordings, which would be particularly damning. Michael Cohen may decide that it would be better to be a cooperating witness rather than face years or even decades in prison. In that case, investigators are likely to have testimony that is very damaging to Trump.
The President is in serious legal peril. No wonder there are insider reports of Trump having a meltdown. No wonder he hired top legal talent to intervene on his behalf in this case (unlike the attorneys he hired for the Russia probe).
On top of this, Special Prosecutor Robert Mueller is likely to already have in hand evidence sufficient to convict the president of obstruction of justice, and possibly also evidence of Trump’s involvement in election and computer fraud and money laundering.
How will it end?
Trump’s impulse is to fire Mueller and fire Deputy Attorney General Rod Rosenstein if necessary to do that. But if it was easy to make the problems go away, he would have done that already. In fact Trump’s problems got much worse when he fired FBI Director James Comey.
The Michael Cohen investigation is being conducted by the public corruption unit of the U.S. Attorney for the Southern District of New York, not by the Special Counsel. Moreover, Rosenstein or his replacement can only fire Mueller for a good reason that they must state. Any Trump flunky sent in to fire Mueller could only offer a reason that is transparently Trumped-up. Moreover, the staff and documents could be transferred to another U.S. attorneys office.
Trump’s own words and actions throughout his entire presidency point to only one conclusion: he is worried because he has something to hide. We already know that Trump and his associates lied repeatedly about contacts with Russians during the campaign. We also know that his campaign manager Paul Manafort had a long history of working for Kremlin-backed oligarchs and politicians, and committed money laundering and bank fraud that could easily put him in prison for the rest of his life.
What will Trump do?
Trump has two choices right now: let the investigations proceed in the knowledge that sooner or later there will be reports or indictments that will detail at least some of his past criminal activity or double down on attempting to block the investigation. The latter will only work if there are enough members of the Executive Branch, and, ultimately, Congress, who are willing to openly defy the rule of law.
In that case, “The President would be abusing his powers and launching a frontal attack on the rule of law that is a foundational principle of our democracy,” according to Fred Wertheimer and Norm Eisen writing in CNN. They draw a parallel to Watergate: “During the Watergate investigation, the removal of special Watergate prosecutor Archibald Cox in the “Saturday Night Massacre” led to a national uproar. It also ultimately led to the resignation of President Richard Nixon. A similar explosion of protest will occur now if Trump goes down such a path.”
Firing Mueller would indeed be unpopular: 69% are against it, compared to 13% in favor, according to a poll released on April 10, 2018. Many would see firing Mueller as a red line that cannot be crossed without stifling the rule of law, and would likely be willing to take to the streets.
George W. Bush, the last President to be elected against the wishes of most voters, saw his favorability rating soar from 50% to 90% after the 9/11 attack. Trump might be lucky enough to have a similar situation fall into his lap, or might seek to create such a situation. With ultra-hawk John Bolton installed as National Security Adviser, that scenario seems more plausible.
What will Congress do?
But the key question is, what would the Republican-controlled Congress do? It could investigate. It could pass a law to create an independent prosecutor. But it would have to do so by a veto-proof majority.
Although several Republican Senators have said that firing Mueller would be political “suicide” and “the end of his presidency,” most Republican politicians have enabled Trump ever since he became the likely winner of the Republican Presidential primaries.
Whether they continue to do so depends on poll numbers approaching the November midterm elections. A record number of Republican incumbents have decided to retire rather than face likely defeat–including the Speaker of the House.
The Michael Cohen investigation leads to the possibility of the public release of evidence on a par with Nixon’s famous tapes — evidence that would not only be legally compelling but would sway the court of public opinion, which will be the ultimate arbiter in this case.
Republicans in the U.S. House have the power to begin impeachment proceedings against the President. But they are unlikely to do so, even in the face of increasing public scorn, given the electoral prospects they personally face. Only six of 51 incumbent Republican Senators are running for re-election (three are retiring, and the remainder are serving terms that do not end in this cycle). In the House, only 18 incumbent Republicans seeking re-election are currently in districts rated as a “tossup” according to the Cook Political Report, representing less than 8% of the 238-seat Republican majority.
What will the voters do?
Before the November 2018 elections for U.S. Congress we will see the trial of Paul Manafort and we will likely see more indictments of Trump’s associates from the Special Counsel, and possibly from other U.S. Attorneys. Mueller is reportedly planning to issue a report, in lieu of an indictment, on Trump’s obstruction of justice, which will be delivered to Congress via Rod Rosenstein. The contents of the report are likely to become public–even if Trump succeeds in firing Mueller.
The new revelations won’t be good for the Republicans at the polls. Even though virtually every poll taken since the beginning of the Trump presidency shows that a 5% to 15% plurality of Americans favors the opposition, the Republican firewall against democracy may yet hold given that:
- Midterm election turnout is typically low (only 37% in 2014) and skewed towards likely Republican voters.
- The district boundaries are overall more favorable to the Republicans (although this been reduced since the court-ordered redistricting in Pennsylvania).
- Only ⅓ of Senate seats will be contested, and only 9 of these are currently held by Republicans, whereas there are several Democratic incumbents who represent Republican-leaning states.
- Most Republican-controlled states have adopted legislation making it more difficult to vote.
What will the next Congress do?
Despite these barriers, there is a reasonable chance that Democrats will end up with a majority in the House. If so they will be able to initiate and control committee investigations, backed up by subpoena power. A Democratic majority could also initiate impeachment proceedings. If Mueller issues a report laying out the evidence for obstruction of justice and perhaps other crimes committed by Trump, impeachment hearings are unquestionably the correct next step. And if Trump manages to remove Mueller–that will be an equally sufficient reason to begin hearings.
A vote to impeach is not a vote to remove, but merely sets up a trial in the Senate. It is possible that Democrats will have a majority of Senators come 2019 (they would have to win all six contests currently rated as a toss up). However it is certain that they won’t have the two-thirds supermajority required to remove a president from office.
Even with a smashing victory in 2018 that would be widely perceived as a resounding NO vote on President Trump, it is impossible that Democrats could remove Trump single-handedly. And if it ever got to the point where at least half of Senate Republicans viewed removing Trump as a lesser evil to keeping him, he would of course be replaced with his Republican Vice President Mike Pence.
The likely outcome is another two years of dysfunctional stalemate. Trump’s miniscule victory margin of 2016 will continue to be decisive in thwarting the will of the American voters. This may be similar to the impasse that prevailed during most of President Obama’s tenure, when the Republicans viewed the adoption of virtually any legislation as an unacceptable victory for the opposition party (and would have likely continued this approach if Hillary Clinton had been elected). With the tables turned, the Democrats may be more willing to allow legislation to move forward.
Should the Democrats also win 51 seats in the Senate they will be able to check appointments to the Cabinet and to the Supreme Court. But America will be stuck with the consequences of the 2016 election for a while further.
A Democracy Agenda for 2020
The election of the least-qualified person ever to hold the most powerful political office in the world should be a wake-up call to fix America’s democracy. Trump’s rise to power was not merely a case of the will of the people expressed through self-government. Trump was not democratically elected–at least not by standards that would be judged fair if we were evaluating other countries. It is now time to make adoptable and effective solutions to America’s democratic defects part of the post-Trump agenda. As the election of the first African-American president set up the election of Trump, so now Trump’s reign could lead to a reborn American democracy.