The November midterms will end up as a referendum on Trump’s impeachment – and he could do surprisingly well

Legally, the president occupies a special place in the constitution. Practically, he also stands to gain a lot from his present supporters

Sean O'Grady
Wednesday 22 August 2018 17:45 BST
Michael Cohen's lawyer says he has information on Donald Trump

It’s all getting a bit All the President’s Men, isn’t it? Like Watergate – uncannily so in this respect – the waters of the scandal are starting to splash at the president’s feet.

Donald Trump’s former presidential campaign chairman Paul Manafort has been convicted of a variety of fraud charges, albeit not directly linked to the president; and his former lawyer, Michael Cohen, has claimed that Trump ordered to him to pay “hush money” to two women to prevent embarrassment during the 2016 presidential campaign, for the “principal purpose of influencing the election”. The point is that he was, he says, ordered to do so by Trump himself (rather than Cohen acting at his own discretion on his own account). That would, it is said, be an indictable, or impeachable, offence. And it’s far from over.

On one single day of politico-judicial drama unseen since the saga that destroyed Richard Milhous Nixon, Manafort has been found guilty of eight counts of financial crimes, directly as a result of the wider probe into the 2016 presidential election being spearheaded by special counsel Robert Mueller. A further 10 charges were, basically, suspended as they were declared “mistrials” (the rest, obviously, were not).

What happens next is in some doubt because Manafort also faces another trial, in Washington DC, this time on charges of failure to register his foreign lobbying and relating to conspiracy to launder money, all relating to his activities in Ukraine. Sooner or later, though, there will be more probes, more convictions, more plea bargains and more questions.

In due course the Mueller investigation will, we know, pursue other witnesses, and more charges may emerge.

Some of Trump’s former staffers and allies, such as Omarosa Manigault Newman, may bring about more stories about legally questionable activities before and after Trump took office. As more officials leave the Trump administration, either of their own accord or after some bust-up, the political embarrassments are bound to mount up, as they always do. The more pertinent question is whether these ex-officials reveal anything that is legally problematic, which might, after all, implicate themselves in some way.

Then there is what, if any, “Kompromat” the Russians hold on Trump, as the wilder rumours have it. Again, there is a huge difference, for the purposes of impeachment, between stuff that’s just in bad taste or nutty, and actions that plainly transgress a relevant law or obligation, as per the oath of office that Trump took in front of that vast crowd on 20 January 2017.

Legally, the president occupies a special place in the constitution, and rightly so. He should be free of undue harassment from any quarter, and no democracy could function where its elected chief executive could be deposed because of some trumped-up charges. He does not go before a judge, but before the legislature. That is key.

First, the House Judiciary Committee holds hearings and, if necessary, prepares articles of impeachment. These are the charges against the official.

Second, if a majority of the committee votes to approve the articles, the whole House debates and votes on them.

Third, if a majority of the House votes to impeach the official on any article, then the official must then stand trial in the Senate.

Then, for the official to be removed from office, two thirds of the Senate must vote to convict the official. Upon conviction, the official is automatically removed from office and, if the Senate so decides, may be forbidden from holding government office again.

Two thirds. Presently the Republicans hold 51 seats in the Senate and the Democrats 46, with two independents. In November, there are 35 seats up for election, of which 26 are already held by Democrats. You may draw your own conclusions.

The US Constitution sets specific grounds for impeachment. They are “treason, bribery, and other high crimes and misdemeanours”. To be impeached and removed from office, the House and Senate must find that the president committed one such of these acts.

So, as President Nixon put it in his resignation speech in 1974, the process of impeachment is “deliberately difficult, and is a mix of the legal, in its early stages, and the political, in the end”.

First you need an impeachable offence. Do we have that yet? Does directing another person (as Cohen alleges) to pay “hush” money to Stormy Daniels and/or Karen McDougal amount to a “high crime and misdemeanour”?

Even if it did, you might well argue, as will no doubt happen, that this sort of thing – if it occurred – happens quite often with well-known personalities, who need to be discreet about affairs and the like. The argument would run that it would have occurred anyway and had nothing to do with the campaign itself.

Also arguable is that the revelations, had they come out, would have altered the course of the election, which, given the Teflon quality of the Trump campaign, is far from obvious. Nor, it might be said, were the payments, which are in any case challenged, intended to sway the election.

But a court would also have to settle findings of fact – whether the moneys were paid, when and by whom; what Trump knew; and what Trump then did or did not do in ordering payment(s) to be made. As Trump himself said, it may amount to his word against Cohen’s.

There may be other charges, as there were in the Watergate affair.

In the case of Cohen, indeed, there may also be more where that came from, as a part of his putative plea bargain. The same goes for Manafort.

To launch a successful impeachment process, you need evidence and appropriate charges. These are possible.

To win an impeachment case, you need Congress behind you and against a popularly elected president with lots of his own supporters there. This is less possible.

Bill Clinton was impeached, you may recall, in 1998 after Ken Starr amassed evidence over the Lewinsky and other affairs, but ultimately found not guilty – because his party in the Senate voted for him. The same happened with the only other impeachment of a president, that of Andrew Johnson in 1868. In its later stages the process is deeply political, and deeply difficult.

Impeachment, for the British to understand, would be like Theresa May being charged with an offence and it being decided not by the normal courts but by the House of Commons.

Back in 1974, President Nixon knew he was in trouble when even his most rabid right-wing Republican supporters, the likes of Senator Barry Goldwater, began to desert him publicly. Hence his remark in that resignation speech that he was quitting before his “trial” because, “I no longer have a strong enough political base in the Congress to justify continuing that effort. As long as there was such a base, I felt strongly that it was necessary to see the constitutional process through to its conclusion, that to do otherwise would be unfaithful to the spirit of that deliberately difficult process and a dangerously destabilising precedent for the future.”

In other words, Tricky Dicky had done the numbers and knew he didn’t stand a chance. In due course his successor, Gerald Ford, pardoned him.

So for the authorities to depose Donald Trump they need support in the Congress, and for that this November’s midterm elections will be especially crucial. They may, in effect, end up as a referendum on impeaching Trump, and that makes the result still more unpredictable.

Unlike Richard Nixon, but like Bill Clinton, Trump has a booming (so far) economy behind him, and is delivering in his campaign promises about protection and “America First” (misguided or not as they may be). It is not impossible that he and the Republicans loyal to him will do better in the autumn than many expect. Weirdly, the very threat of impeachment might mobilise the Trump base.

But what if the charges were so grave – say, for example, of collusion with the Russians, that even the Trumpists could not support him in conscience? (And it is true that many Republicans quietly loathe Trump.)

Would Trump simply refuse to go?

When they thought Richard Nixon might not go quietly, and might use his role as commander in chief of the US military to resist arrest, Nixon’s chief of staff, Al Haig, made arrangements to ensure that the president’s orders would not stand. It was quite a fevered atmosphere in that White House. You would think, though, that Trump would use any and all means at his disposal to resist being levered out of office. The very threat of a Trumpian gotterdammerung might deter some in Congress from pursuing impeachment or, in due course, finding him guilty.

Finally, and really not to be underestimated, we have to turn to the wisdom of Abraham Lincoln before we get carried away: “In this age, in this country, public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever moulds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions.”

If Trump, via his rallies, his tweets, his bombast, and indeed his political and economic delivery, can mould public opinion his way, then he will survive the pressure of impeachment – and even prosper from it.

He is, as President Macron said, not a “classical politician”, and he seems to cope with the pressures surprisingly well. He’s had quite a few scrapes in his business and private life. This may just turn out to be one more.

Impeachment would take so long, and be resisted so attritionally at every turn, that Trump could easily be past his term of office before anything caught up with him fatally. By which time he’d be gone and it wouldn’t seem to matter much. If he stuck around for a second term – and managed to get re-elected even with impeachment hanging around his neck – then the chances of him being convicted would seem slim indeed.

In either case President Mike Pence, or President Ivanka Trump, or whoever else succeeds him, could dish out a presidential pardon.

Or he’ll end up in jail.

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