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Trump Should Fear Indictment More Than Impeachment

The president could face charges the moment he leaves office.


Friday’s wave of court filings in the Russia investigation and the federal probe into the Trump Organization increased the likelihood that President Donald Trump broke the law in the run-up to the 2016 election. “It is no longer journalistically sound to report on the Trump investigation as if it is a matter that may, or may not, yield damning information about the President,” The New Yorker’s Adam Davidson wrote. “The most likely scenario now,” concluded Wired’s Garrett Graff, “is that there was no division between the apparent Trump-Russian collusion on business matters and in the election.”

Those revelations in turn fed the debate about whether there’s sufficient evidence to impeach the president. New York Representative Jerry Nadler, a Democrat, said that the allegations surrounding hush-money payments to Stephanie Clifford, the adult film star known as Stormy Daniels, could rise to that threshold. “Certainly they’re impeachable offenses,” he told CNN on Sunday, “because even though they were committed before the president became president, they were committed in the service of fraudulently obtaining the office.” Nadler, as incoming chairman of the House Judiciary Committee, would oversee the initial phase of any impeachment proceedings that take place.

Impeaching the president may not be politically wise or even legally possible. But there may now be sufficient evidence to indict the president when he leaves office. If so, only the norm against prosecuting one’s political opponents would stand between Trump and the law. That raises the question of whether his alleged crimes are enough to overcome it.

There’s been considerable debate over the years about whether a sitting president can be indicted. The Justice Department’s Office of Legal Counsel opined in 1973 that while the vice president could be indicted, the president could not. Members of independent counsel Ken Starr’s team concluded in 1998 that he could indict Bill Clinton for lying to a federal grand jury, though Starr opted to deliver a report to Congress instead. Rudy Giuliani, the president’s personal lawyer, told reporters earlier this year that Mueller’s team had ruled out the possibility of indicting Trump while in office.

Trump is not the president for life, however, and current polling suggests he may not be a two-term president either. Unless he’s re-elected in 2020, his term of office expires at noon on January 20, 2021. Citizen Trump will then be constitutionally indistinguishable from you, me, Michael Flynn, Paul Manafort, and Michael Cohen.

“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,” California Representative Adam Schiff, the incoming chair of the House Intelligence Committee, said on CBS on Sunday. “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.

The most obvious charges that Trump could face would be campaign-finance violations. Michael Cohen, Trump’s former personal attorney, pleaded guilty in August to not reporting hush-money payments to two women, Clifford and Playboy model Karen McDougal, with whom Trump allegedly had affairs as illegal campaign donations. In a court filing last Friday, federal prosecutors in Manhattan all but identified the president as an unindicted co-conspirator. “With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election,” they wrote. “In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.” (Individual-1 is prosecutors’ moniker for Trump.)

After his presidency, Trump could also be on the hook for obstruction-related charges. There’s a broad consensus that he may have met the legal threshold for obstruction of justice when he fired FBI Director James Comey last year. His legal fortunes have not improved since then. After a federal jury convicted former Trump campaign chairman Paul Manafort in August, Trump appeared to float the possibility of pardoning Manafort if he refused to cooperate with investigators, which may amount to bribery. His tweets earlier this month about Manafort and Roger Stone also raised concerns about witness tampering.

Less is known about Trump’s personal role in the core substance of the Russia investigation: whether his campaign colluded with Moscow to corruptly influence the election. But there is more than enough data available to draw a preliminary conclusion. As it now stands, the Trump-Russia collusion theory is too thoroughly supported by the available evidence to be proven wrong in its broadest strokes. There are too many documented connections between the two sides to discount, too many opportunities for cooperation to ignore, and too many efforts to stop investigators for the benefit of the doubt. What’s left to determine, to borrow a taxonomy from British politics, is where there was soft collusion or hard collusion.

Soft collusion would be cooperation between the Kremlin and the Trump campaign without an explicit quid pro quo. The Russians had plenty of quid to offer: promises of damaging information about Hillary Clinton, troves of stolen emails from her campaign chairman and the Democratic National Committee, the prospect of a lucrative real-estate deal in Moscow, and surreptitious assistance in winning the presidency of the United States. They also made their quo abundantly clear. Natalia Veselnitskaya, the Russian lawyer who took part in the infamous Trump Tower meeting in the summer of 2016, previously worked on lobbying against U.S. sanctions against top Russian oligarchs. Donald Trump Jr. told investigators that the meeting went nowhere because Veselnitskaya only talked about Russian adoptions.

Trump himself repeatedly signaled his willingness throughout 2015 and 2016 to favor Russian interests if elected. He repeatedly criticized NATO as “obsolete,” questioned whether Putin was actually responsible for the murders of Russian journalists, and frequently asserted that he would get along well with the Russian president. On July 27, he publicly welcomed Moscow’s use of Clinton’s emails for partisan gain during a televised press conference. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” he said, referring to emails deleted from the former secretary of state’s private email server.

Rare is the person who didn’t have strange contacts with Russian figures during the campaign. Mueller’s filings indicate that Manafort’s plea agreement fell apart because the political operative kept lying about his contacts with his associate Konstantin Kilimnik, a Russian political consultant believed to have strong ties with his country’s intelligence agencies. Roger Stone, a longtime Republican political operative, is under intense scrutiny for his efforts to forge communications with Julian Assange, the WikiLeaks founder who published stolen Democratic emails. There were Flynn’s communications with Ambassador Sergey Kislyak after the Obama administration imposed sanctions, as well as Jared Kushner’s request for Kislyak to set up a secret backchannel to Moscow. Even George Papadopoulos, an otherwise unremarkable foreign-policy aide, received entreaties from a mysterious British-based professor with Russian ties who offered dirt on Clinton.

With all these interactions, it would almost be strange if some form of implicit arrangement wasn’t struck: You guys throw a few good jabs at Clinton, we’ll take another look at those sanctions if we win and pick out carpets for the Trump Tower Moscow if we lose. (The Trump Organization will even throw in a swanky $50 million penthouse if everything works out.) Some observers believe that Mueller will conclude his investigation with a lengthy report summarizing his findings. Others think he’s essentially been releasing that report in bits and pieces through the indictments and court filings he’s already made public. But whatever form it takes, soft collusion looks like the floor for whatever he’s found.

So what’s the ceiling? Hard collusion—some kind of explicit agreement between the Trump campaign and the Russian government—would be trickier to prove, but still possible. Flynn received a lenient sentencing recommendation from Mueller earlier this month for his extensive cooperation with the investigation, none of which has made it into indictments or plea agreements anywhere else. As a top member of the Trump campaign, he would be well-positioned to discuss its inner workings. He would also be able to describe Trump’s involvement in the phone call with Kislyak that ultimately ended Flynn’s national-security career.

Mueller’s filings on Friday also describe a November 2015 interaction between Cohen and an unnamed Russian national who said they could provide “political synergy” and “synergy on a government level” with the Trump campaign. The unnamed figure also offered to set up a meeting between Trump and Putin and made references about Putin’s potential endorsement of the Moscow Project. Mueller told the court that Cohen didn’t pursue the relationship because he was working with someone, presumably Felix Sater, who already had connections with the Russian government.

Those connections may be one of the reasons why the special counsel asked for some leniency toward Cohen. “Cohen provided the [special counsel’s office] with useful information concerning certain discrete Russia-related matters core to its investigation that he obtained by virtue of his regular contact with Company executives during the campaign,” Mueller’s filing states. The sentence is a fascinating combination of vagueness and specificity. “Certain discrete Russia-related matters core to its investigation” may turn out to be the world’s longest synonym for collusion. “Company executives,” on the other hand, could be almost anyone within the Trump Organization’s upper ranks, including the president’s eldest children or even Trump himself.

It’s possible that Trump remained blissfully unaware of the extent of communications between his subordinates and a web of shadowy Russian figures. His reality-TV persona aside, the president isn’t really known as a hands-on manager or a stickler for details. If there’s evidence of hard collusion, however, and if Mueller can trace it directly to the president, he could be in legal jeopardy. One possible charge would be conspiracy to defraud the United States, the same charge that Mueller slapped on thirteen Russian intelligence operatives in February for making political expenditures to influence the election as foreign nationals.

American presidents haven’t typically had to worry about facing criminal charges when leaving office. For better or for worse, there’s a strong norm against prosecuting former political opponents. Proponents rightly point out that going after one’s political adversaries risks destabilizing a democratic political system by turning every election into a battle for control of the nation’s prosecutorial powers. Critics note that the norm can also prevent accountability for genuine wrongdoing by high-level officials, such as when the Obama administration declined to pursue charges against Bush-era officials for torture.

No figure in modern American politics, however, has so stupendously forfeited the right to invoke this norm as Donald Trump. The president rose to power while claiming he would prosecute Clinton for vague, unspecified crimes while his supporters chanted “Lock her up!” at rallies. During the second presidential debate in 2016, he threatened to throw her in jail if elected. Trump reportedly tried to make good on his pledge by ordering the Justice Department to prosecute her and Comey earlier this year, only to be rebuffed by then-White House Counsel Don McGahn. Prosecuting an ex-president is a hard, dangerous decision. In an ironic twist for the ages, however, nobody has made it easier than Trump himself.