The Michael Cohen sentencing set off new rounds of speculation over whether the Trump presidency will end before the expiration of his term. It’s time to revisit briefly the options: resignation, indictment, impeachment.
When Trump was elected, speculation held that he didn’t really want to be president and – under the pressure of investigations, too much work, not enough golf, and a desire to return to money making – would quit before the end of his term. That speculation was hopeful thinking that failed to account for the seductive qualities of life in the White House as the most powerful, visible, and pampered person on the planet. Trump’s needy, narcissistic personality made him particularly susceptible. He’s not going anywhere without a powerful push.
Recent events have surfaced a possible source for that powerful push. Call it the Agnew option in honor of Spiro Agnew, who agreed to trade the vice presidency for a sweetheart prosecution deal after he was caught taking bags of kickback cash. He pleaded no contest to one count of tax evasion and relinquished his office in exchange for a recommendation of probation, a fine, and no prison time.
Michael Cohen’s plea and sentencing both claimed that Cohen acted at the direction of Trump in arranging payment to Stormy Daniels and Karen McDougal to prevent them from telling their stories during the presidential campaign. The language of the pleadings strongly suggests that the Southern District of New York (SDNY) prosecutors have evidence implicating Trump in at least two felonies. In a separate agreement, entered in September but just released, SDNY agreed not to prosecute the parent company of the National Enquirer in exchange for cooperation and an admission that it had paid Karen McDougal $150,000 in coordination with the Trump organization for the purpose of suppressing her statement prior to the election. It seems likely SDNY will seek further indictments in this affair.
Meanwhile, Mueller’s inquiry is intensifying with a growing cast of cooperators, including Michael Cohen (whose cooperation should continue even after receiving his three-year sentence), Trump CFO Allen Weisselberg, Michael Flynn, Russian agent Mariia Butina (though prosecuted by the D.C. U.S. Attorney, she may cooperate with Mueller), AMI head David Pecker, and others known and unknown. They are talking about a range of subjects, including Trump’s business dealings with Russia, money laundering, communication and coordination between Russians and Trump’s campaign, and other aspects of Trump’s business. The web of potential criminality extends through Trump’s family, business associates, campaign operatives, and administration members. On top of it all, based only on public information, Mueller has a strong obstruction of justice case that likely is airtight when the non-public fruits of his investigation are included.
Justice Department policy precludes indictment of a sitting president, largely based on the resulting interference with the president’s ability to perform his duties. That justification rings mildly comical regarding this president. A slight curtailing of his TV, twitter, and golf habits would free up sufficient time to mount a defense. The cloud of an indictment would surely diminish a president’s effectiveness, but a sealed indictment solves that problem, so long as it remains secret. In any event, odds are overwhelming that Mueller and whoever is supervising his investigation will abide by DOJ policy.
A president, however, can be indicted after leaving office. The statute of limitations on some of Trump’s possible crimes will not have run out assuming he leaves office in January 2021. For example, the time limit on charging campaign finance violations arising from the Daniels and McDougal payoffs will not run out until at least October 2021. It is no stretch to speculate that Trump’s criminal liability will run far beyond those violations as Mueller’s investigation continues.
That’s where the Agnew precedent could come into play. The presidency gives Trump powerful leverage to cut a deal with prosecutors who feel urgency to bring him to justice. He could trade his resignation for an agreement that might prevent his incarceration after he leaves office. Trump might believe that he doesn’t need a deal because he can pardon himself. That’s a fantasy. A presidential self-pardon would be inconsistent with our constitutional principle that no person is above the law. A self-pardoning president would be a loose cannon that could shatter the Constitution. On balance, it’s hard to imagine Trump relinquishing the presidency, but the Agnew example presents one model for doing so.
That leaves impeachment. Congress cannot simply ignore the growing body of evidence showing the president has committed federal felonies. It already appears likely he committed campaign finance violations that may have influenced enough votes to delegitimize his victory. If it emerges – as appears increasingly likely — that he won the presidency while conspiring with Russia, the House should have no choice but to consider articles of impeachment. Democrats need to begin the process immediately in January by investigating aggressively collusion, obstruction of justice, and campaign finance issues. They should not open the new Congress by teeing up articles of impeachment for immediate consideration. Movement toward impeachment must be a process based on hearings, depositions, and the collection of documents that will build on and complement Mueller’s efforts. It must be a process that educates the public and develops an unassailable record.
If, as seems likely, the evidence warrants impeachment, the House should act. While impeachment should not be a partisan undertaking, the House cannot let a united partisan opposition deter it from fulfilling its constitutional role. By the time the House acts, Republican opposition may have softened based on revelations that emerge from the process. It can also be expected to soften as conditions weaken Trump’s popularity, undermining chilling statements such as Sen. Orrin Hatch’s retort that he doesn’t care that Trump may have been implicated in felonies because Trump’s a good president. Such sentiments may prove indefensible after the country slips into recession and Trump’s follies continue. Indeed, Trump may be only a powerful House record and two quarters of economic contraction from impeachment. Both are looming on the horizon.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.