The Presidency or Prison

What happens if re-election is Trump’s best hope of avoiding an indictment?

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.

.. . 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.”

.. “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.

.. 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 dilemma 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. Representative Jerrold Nadler, the New York Democrat who will soon lead the House Judiciary Committee, told me he wouldn’t consider impeachment proceedings without at least some Republican support. 

.. 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 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.
.. 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 virtually any 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.
.. 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.”
.. But if the president has committed felonies, we also have to figure out how Republicans might be induced to care.

Trump’s Diminishing Power and Rising Rage

None of Trump’s extremist policy ideas has received public support. The public opposed last year’s

  1. Republican-backed corporate tax cut, Trump’s
  2. effort to repeal the Affordable Care Act (Obamacare), his
  3. proposed border wall with Mexico, the decision to
  4. withdraw from the Iran nuclear agreement, and the
  5. imposition of tariff increases on China, Europe, and others.
  6. At the same time, contrary to Trump’s relentless promotion of fossil fuels (coal, oil, and gas), the public favors investments in renewable energy and remaining in the Paris climate agreement.

.. Trump has tried to implement his radical agenda using three approaches.

1) The first has been to rely on the Republican majorities in the two houses of Congress to pass legislation in the face of strong popular opposition. That approach succeeded once, with the 2017 corporate tax cut, because big Republican donors insisted on the measure, but it failed with Trump’s attempt to repeal Obamacare, as three Republican senators balked.

.. 2)  The second approach has been to use executive orders to circumvent Congress. Here the courts have repeatedly intervened, most recently within days of the election, when a federal district court halted work on the Keystone XL Pipeline, a project strongly opposed by environmentalists, on the grounds that the Trump administration had failed to present a “reasoned explanation” for its actions. Trump repeatedly and dangerously oversteps his authority, and the courts keep pushing back.

.. 3) Trump’s third tactic has been to rally public opinion to his side. Yet, despite his frequent rallies, or perhaps because of them and their incendiary vulgarity, Trump’s disapproval rating has exceeded his approval rating since the earliest days of his administration. His current overall disapproval rating is 54%, versus 40% approval, with strong approval from around 25% of the public. There has been no sustained move in Trump’s direction.

.. In the midterm elections, which Trump himself described as a referendum on his presidency, the Democratic candidates for both the House and Senate vastly outpolled their Republican opponents. In the House races, Democrats received 53,314,159 votes nationally, compared with 48,439,810 for Republicans. In the Senate races, Democrats outpolled Republicans by 47,537,699 votes to 34,280,990.

.. Summing up votes by party for the three recent election cycles (2014, 2016, and 2018), Democratic Senate candidates outpolled Republican candidates by roughly 120 million to 100 million. Nonetheless, the Republicans hold a slight majority in the Senate, where each state is represented by two senators, regardless of the size of its population, because they tend to win their seats in less populous states, whereas Democrats prevail in the major coastal and Midwestern states.

Wyoming, for example, elects two Republican senators to represent its nearly 580,000 residents, while California’s more than 39 million residents elect two Democratic senators. 

Without control of the House, however, Trump will no longer be able to enact any unpopular legislation. Only policies with bipartisan support will have a chance of passing both chambers.

.. On the economic front, Trump’s trade policies will become even less popular in the months ahead as the American economy cools from the “sugar high” of the corporate tax cut, as growing uncertainty about global trade policy hamstrings business investment, and as both the budget deficit and interest rates rise. Trump’s phony national-security justifications for raising tariffs will also be challenged politically and perhaps in the courts.

.. True, Trump will be able to continue appointing conservative federal judges and most likely win their confirmation in the Republican-majority Senate. And on issues of war and peace, Trump will operate with terrifyingly little oversight by Congress or the public, an affliction of the US political system since World War II. Trump, like his recent predecessors, will most likely keep America mired in wars in the Middle East and Africa, despite the lack of significant public understanding or support.

.. Nonetheless, there are three further reasons to believe that Trump’s hold on power will weaken significantly in the coming months. First, Special Counsel Robert Mueller may very well document serious malfeasance by Trump, his family members, and/or his close advisers. 

.. Second, the House Democrats will begin to investigate Trump’s taxes and personal business dealings, including through congressional subpoenas. There are strong reasons to believe that Trump has committed serious tax evasion (as the New York Times recently outlined) and has illegally enriched his family as president (a lawsuit that the courts have allowed to proceed alleges violations of the emoluments clause of the Constitution). Trump is likely to ignore or fight the subpoenas, setting the stage for a major political crisis.

.. Third, and most important, Trump is not merely an extremist politician. He suffers from what author Ian Hughes has recently called “a disordered mind,” filled with

  • hate,
  • paranoia, and
  • narcissism.

According to two close observers of Trump, the president’s grip on reality “will likely continue to diminish” in the face of growing political obstacles, investigations into his taxes and business dealings, Mueller’s findings, and an energized political opposition. We may already be seeing that in Trump’s erratic and aggressive behavior since the election.

.. The coming months may be especially dangerous for America and the world. As Trump’s political position weakens and the obstacles facing him grow, his mental instability will pose an ever-greater danger. He could explode in rage, fire Mueller, and perhaps try to launch a war or claim emergency powers in order to restore his authority. We have not yet seen Trump in full fury, but may do so soon, as his room for maneuver continues to narrow. In that case, much will depend on the performance of America’s constitutional order. 

I Am Part of the Resistance Inside the Trump Administration

I work for the president but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations.

.. The dilemma — which he does not fully grasp — is that many of the senior officials in his own administration are working diligently from within to frustrate parts of his agenda and his worst inclinations.
.. To be clear, ours is not the popular “resistance” of the left. We want the administration to succeed and think that many of its policies have already made America safer and more prosperous.
.. But we believe our first duty is to this country, and the president continues to act in a manner that is detrimental to the health of our republic.
That is why many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump’s more misguided impulses until he is out of office.
The root of the problem is the president’s amorality. Anyone who works with him knows he is not moored to any discernible first principles that guide his decision making.
.. Although he was elected as a Republican, the president shows little affinity for ideals long espoused by conservatives:
  • free minds,
  • free markets and
  • free people.
At best, he has invoked these ideals in scripted settings. At worst, he has attacked them outright.
.. In addition to his mass-marketing of the notion that the press is the “enemy of the people,” President Trump’s impulses are generally anti-trade and anti-democratic.

There are bright spots that the near-ceaseless negative coverage of the administration fails to capture:

  • effective deregulation,
  • historic tax reform, a
  • more robust military and more.

But these successes have come despite — not because of — the president’s leadership style, which is

  • impetuous,
  • adversarial,
  • petty and
  • ineffective.

From the White House to executive branch departments and agencies, senior officials will privately admit their daily disbelief at the commander in chief’s comments and actions. Most are working to insulate their operations from his whims.

.. Meetings with him veer off topic and off the rails, he engages in repetitive rants, and his impulsiveness results in half-baked, ill-informed and occasionally reckless decisions that have to be walked back.

“There is literally no telling whether he might change his mind from one minute to the next,” a top official complained to me recently, exasperated by an Oval Office meeting at which the president flip-flopped on a major policy decision he’d made only a week earlier.

The erratic behavior would be more concerning if it weren’t for unsung heroes in and around the White House. Some of his aides have been cast as villains by the media. But in private, they have gone to great lengths to keep bad decisions contained to the West Wing, though they are clearly not always successful.

The result is a two-track presidency.

Take foreign policy: In public and in private, President Trump shows a preference for autocrats and dictators, such as President Vladimir Putin of Russia and North Korea’s leader, Kim Jong-un, and displays little genuine appreciation for the ties that bind us to allied, like-minded nations.

Astute observers have noted, though, that the rest of the administration is operating on another track, one where countries like Russia are called out for meddling and punished accordingly, and where allies around the world are engaged as peers rather than ridiculed as rivals.

.. On Russia, for instance, the president was reluctant to expel so many of Mr. Putin’s spies as punishment for the poisoning of a former Russian spy in Britain. He complained for weeks about senior staff members letting him get boxed into further confrontation with Russia, and he expressed frustration that the United States continued to impose sanctions on the country for its malign behavior. But his national security team knew better — such actions had to be taken, to hold Moscow accountable.

.. This isn’t the work of the so-called deep state. It’s the work of the steady state.

Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until — one way or another — it’s over.

.. The bigger concern is not what Mr. Trump has done to the presidency but rather what we as a nation have allowed him to do to us. We have sunk low with him and allowed our discourse to be stripped of civility.

.. Senator John McCain put it best in his farewell letter. All Americans should heed his words and break free of the tribalism trap, with the high aim of uniting through our shared values and love of this great nation.

.. We may no longer have Senator McCain. But we will always have his example — a lodestar for restoring honor to public life and our national dialogue. Mr. Trump may fear such honorable men, but we should revere them.

.. There is a quiet resistance within the administration of people choosing to put country first. But the real difference will be made by everyday citizens rising above politics, reaching across the aisle and resolving to shed the labels in favor of a single one: Americans.