Friday, Dec. 14, 2018 | 2 a.m.
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Donald Trump — or, as he’s known to federal prosecutors, Individual-1 — might well be a criminal. That’s no longer just my opinion, or that of Democratic activists. It is the finding of Trump’s own Justice Department.
Last week, federal prosecutors from the Southern District of New York filed a sentencing memorandum for Michael Cohen, Trump’s former lawyer, who is definitely a criminal. The prosecutors argued that, in arranging payoffs to two women who said they’d had affairs with Trump, Cohen broke campaign finance laws, and in the process “deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.”
The filing emphasized the way Cohen’s actions subverted democracy. “While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows,” prosecutors wrote. And he didn’t act alone, but “in coordination with and at the direction of Individual-1.” In other words, lawyers from the Justice Department have concluded that Trump may have committed a felony that went to the heart of the process that put him in office.
Trump’s potential criminality in this case, which raises questions about his legitimacy as president, creates a quandary for Democrats. Assuming prosecutors are right about Trump’s conduct, it certainly seems impeachable; a situation in which a candidate cheats his way into the presidency is one the founders foresaw when they were designing the impeachment process. As George Mason argued at the Constitutional Convention, “Shall the man who has practiced corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?”
But in our current moment, removing the president through impeachment is essentially impossible, given that at least 20 Senate Republicans would have to join Democrats. Rep. Jerrold Nadler, D-N.Y., who will soon lead the House Judiciary Committee, told me he wouldn’t consider impeachment proceedings without at least some Republican support. There is certainly no appetite among congressional Democrats to pursue impeachment over a campaign finance case, particularly while the special counsel investigation into Russian collusion chugs on.
This leaves us in a dangerous situation. Under Justice Department guidelines, sitting presidents can’t be indicted. Ex-presidents, however, can. Experts on both the left and the right believe that if Trump is voted out of office in 2020, before the five-year statute of limitations on campaign finance violations runs out, he could find himself in serious legal jeopardy.
The conservative Andrew McCarthy, a former prosecutor in the Southern District of New York and frequent Trump defender, wrote on Fox News’ website Sunday, “The president is very likely to be indicted on a charge of violating federal campaign finance laws.” Rep. Eric Swalwell, D-Calif., a former prosecutor, told me, “This president has potential prison exposure.”
The 2020 presidential election was always going to be extraordinarily ugly, but one can only imagine what Trump will do if the alternative to the White House is the big house. “It’s dangerous,” said Swalwell, who worries that Trump could become even more erratic, making decisions to save himself that involve “our troops or internal domestic security.”
Ordinarily, you know that a democracy is failing when electoral losers are threatened with prison. But Trump’s lawlessness is so blatant that impunity — say, a pardon, or a politically motivated decision not to prosecute — would also be deeply corrosive, unless it was offered in return for his resignation.
There’s simply no way around it — as long as Individual-1 is on the ticket, the 2020 election is set to be a banana republic-style death match. Trump will almost certainly try to criminalize his opponent — crowds at his rallies have taken to chanting “Lock her up” at the mention of virtuallyany Democratic woman’s name. And Democrats won’t be able to uphold the general principle that in American elections, losing doesn’t mean personal ruination, because for Trump it will and it should.
There are ways to lower the stakes somewhat. Nadler told me he plans to introduce legislation that would freeze the statute of limitations for crimes committed by presidents, so they could be charged when their terms end. Such a law would at least mean that Trump couldn’t evade justice forever just by winning re-election.
That would mitigate the peril to our democracy, but it wouldn’t come close to eliminating it. Our best hope may lie in the emergence of irrefutable evidence of further presidential crimes, enough to finally test the tolerance of at least some fraction of Republicans.
“The story’s not over yet,” Rep. Jamie Raskin, D-Md., a former constitutional law professor, told me. “We’re just at the beginning of it. After two years of hearing people say we were all trigger-happy on impeachment, now I’m hearing we’re all constitutional fraidy-cats. Give us a chance to do the fact investigation and figure out what happened.”
Fair enough. But if the president has committed felonies, we also have to figure out how Republicans might be induced to care.
Michelle Goldberg is a columnist for The New York Times.
