THE TRUMP PRESIDENCY END GAME: DOES HE STAY? DOES HE LEAVE? HOW DOES HE LEAVE?

We aren’t there yet. In Robert Frost’s words, we have miles to go before we sleep. But, we are headed for the Trump presidency end game. We’ve been thinking about what that might look like. We see rough sledding and hard choices ahead – for Trump and for American Democracy.  

The Gathering Storm

On November 6, Americans resoundingly gave Democrats control of the United States House of Representatives. This poses potentially dire consequences for the Trump presidency. House Democrats can, and will, investigate Trump’s misdeeds as the current Republican majority wouldn’t. Most important, the new majority can initiate impeachment proceedings. The likelihood Democrats will conclude they have no other choice has recently increased exponentially.

After keeping quiet while the election unfolded, Special Counsel Robert Mueller re-emerged with a bang. Mueller’s recent actions, and others we might see soon, put Trump squarely in danger of facing impeachment in 2019. First, Mueller obtained a guilty plea from former Trump lawyer and fixer Michael Cohen for lying to Congress about the Trump organization’s plans for a hotel in Russia in 2016 while Trump claimed he had no business activities in Russia. Second, in sentencing memos for former Trump National Security Advisor Michael Flynn, Cohen, and former Trump campaign chairman Paul Manafort, Mueller hinted he and other federal prosecutors continue investigating additional potential Trump crimes. Meanwhile, Southern District of New York prosecutors squarely accused Trump of directing Cohen in committing federal campaign finance felonies.   

Left Photo: Cohen/Right Photo: Manafort - PhotoCred: Business Insider

 

Eventually, it seems likely Mueller will tell Congress what he knows, if he follows the generally, though not universally, accepted

principle he can’t indict a sitting President. Assuming Mueller goes with this procedure, and believing as we do his report will contain significant evidence of Trump’s “high crimes and misdemeanors,” the House Judiciary Committee will report out articles of impeachment and the full House will vote for impeachment. That requires only a simple majority. What then?

In search of 20 Republican senators

Under the U.S. Constitution, once the House impeaches a President, conviction and removal from office require a two-thirds vote in the Senate. The new Senate includes 53 Republicans and 47 Democrats. If all 47 Democrats vote for conviction, removing Trump from office could occur only if 20 Republican senators agree. Where would those votes come from and why? 

By the time the Senate votes—probably 2019 or early 2020 – election year politics will have intervened. How much political strength will Trump retain? How will that figure in the calculations of Republican senators soon facing the electorate? Richard Nixon’s experience provides clues.

In the summer of 1974, the House Judiciary Committee, after

Nixon family boarding Air Force One for last time Aug. 9, 1974

riveting televised hearings, voted out three impeachment articles. The outcome in the full House was clear, given the Democratic majority. Attention shifted to the Senate, even before the House vote. Nixon’s approval rating had fallen to about 25 percent. Republicans faced catastrophic losses in the upcoming mid-terms if Nixon remained in office. A delegation of “wise men” – senior Republican senators led by Arizona’s conservative icon Barry Goldwater and Pennsylvania’s moderate Hugh Scott -- trekked to the White House and told Nixon his Senate support had fallen below the Mendoza line. He couldn’t survive because Republicans couldn’t survive. Nixon resigned. 

For three reasons, we see the odds against this happening again. First, Trump probably wouldn’t listen. Second, no “wise men” with the stature of Goldwater and Scott remain in the GOP senatorial ranks. Who’d do that job now? Lindsey Graham? Mitch McConnell? Marco Rubio? With all due respect, we doubt it in each case. If he were here and if he were a Republican, Lloyd Bentsen might tell each one, “I knew Barry Goldwater. Barry Goldwater was a friend of mine. Senator, you’re no Barry Goldwater.”

Third, we question whether Trump’s approval rating ever falls into the 20s. He probably got it right when he said he could get away with shooting someone on Fifth Avenue in New York. We haven’t seen signs of Trump’s hard core 35-38 percent deserting him. That makes identifying 20 GOP senators who’d bail a stretch, especially since we see only two (Maine’s Susan Collins and Colorado’s Cory Gardner) facing re-election in 2020 in states Hillary Clinton carried in 2016.

The old fashioned way

Once upon a time, the brokerage firm Smith Barney ran a television campaign using the distinguished, if crusty, actor John Houseman as its spokesperson. Houseman ended the ads asserting Smith Barney made money for its clients, “the old fashioned way – they earn it.” Looking at the political realities, and the numbers, we conclude the United States probably can rid itself of the debilitating, destructive Trump presidency only in the old fashioned way – voting him out in 2020.   

Mueller’s probe now suggests Trump and his associates (1) colluded or conspired with Russia in interfering in the 2016 election, (2) obstructed justice by impeding the investigation into that collusion, (3) lied to the American people, and perhaps to investigators, about business dealings with foreign countries, and (4) committed numerous other still undisclosed crimes. Once Muller makes known the details of Trump’s “high crimes and misdemeanors,” we believe the evidence will demand conviction and removal from office. Republican senators and their Trump supporters will have to decide on making the ultimate bargain with the devil: leaving Trump as President, despite his assaults on the rule of law and possible destruction of NATO, all in exchange for more conservative Supreme Court appointees and retaining tax cuts for the rich.  As we’ve said, we doubt enough Republican senators vote for conviction. That leaves doing it the old fashioned way.                       

Unimaginably Immoral: Trump Fires FBI Director James Comey

President Trump’s May 15 firing of FBI Director James Comey unleashed a string of events the nation may feel for years.  By the end of that week, the Justice Department, under mounting public and political pressure, named a special prosecutor to pursue the investigation into possible collusion between the Trump campaign and Russia in interfering in the 2016 presidential election. Published reports soon indicated investigators were targeting a “person of interest” working on the White House staff.  Those reports described the unnamed individual as “close” to the President. It’s now apparent that person is Trump’s son-in-law, Jared Kushner.  Cable news stories, editorial pieces, and blogs suggested Trump’s personal actions constituted obstruction of justice.  A few Congressional Democrats, and more than a few people around the country, openly began using the “I” word and Trump in the same sentence.

Facts aren’t in yet   We know some of the facts of Trump’s conduct, but not everything.  We know he has offered public statements that, on their face, seem like an effort to shut down or impede the FBI’s Russia investigation. He told NBC’s Lester Holt he fired Comey because of that investigation, despite the pretext of dissatisfaction with Comey’s handling of the Hillary Clinton e-mail matter. Published reports indicated Trump asked Comey to stop investigating his fired national security advisor, General Michael Flynn.  Comey supposedly wrote a memo shortly after that conversation, contemporaneously memorializing the President’s effort to get him to drop that investigation.  The Comey memo hasn’t been released and Comey hasn’t testified about that meeting. Reportedly, he’s agreed to appear before the Senate Intelligence Committee in early June. Until everything comes out, we can’t know the exact facts. What we do know has the odious smell of obstruction of justice

We can’t say if the special prosecutor will conclude Trump’s actions constitute obstruction of justice. As Henry, the one of us who’s served as a judicial officer charged with applying the law of obstruction of justice, points out, federal obstruction statues are complex and subject to differing interpretations. As legally trained individuals, we recognize the importance of basing conclusions on complete factual development of the record and a full understanding of applicable law.

Woodson, however, has seen enough.  He says, “The President encouraged Flynn to plead the Fifth, though Flynn remains under investigation for operating as a foreign agent while serving as National Security Advisor and for colluding with the Russians in interfering in our national election. Trump fired the FBI director for not conducting the Russia/Trump investigation in a manner that suited hm.  He asked the heads of the National Intelligence and National Security agencies to declare that they found no collusion between the Trump campaign and Russia when they made no such finding. If those actions don’t constitute “High Crimes and Misdemeanors,” I don’t know what does.

“I think few legal scholars would conclude Trump’s actions don’t amount to obstruction of justice. Ultimately, an elected Congress must determine the political question of what constitutes “High Crimes and Misdemeanors.”  I align myself with Justice Potter Stewart’s sentiments when he explained his determination of pornography. I know “High Crimes and Misdemeanors” when I see them.”                   

No crime needed   Despite Rob and Henry’s unwillingness to now say that Trump has committed an impeachable offense, they have no difficulty expressing their moral, political, and patriotic outrage about what’s happened so far.  We titled this piece as we did because we could find no better phrase than Woodson’s characterization of the President’s behavior. “Unimaginably immoral” sums up our feelings about the potential irreparable harm Trump’s acts continue to do to our country’s political and social institutions. We all agree that if Congress and the courts – the co-equal branches of our government – don’t move systematically against him, removing him from office if the facts and law ultimately justify doing so – it may take years for those institutions to recover.

The political calculus concerning impeachment remains much the same as we suggested in our earlier comments on that subject.  With all due respect to Woodson’s belief that it will happen this year, a sober analysis of the politics still makes that a long shot. Special counsel Robert Mueller faces a potentially long and complex investigation. Criminal charges against Trump’s associates, if Mueller brings them, may take years to prosecute.  While Mueller builds cases against individuals, Republicans retain the levers of power in the House where impeachment must originate. They haven’t abandoned Trump and any honest assessment of the mood of Congress still must give him the advantage. Even revelations that Trump shared with the Russians sensitive American intelligence, probably given to the United States by Israel, didn’t pry Republicans from Trump’s side.

Trump’s conduct, especially this sharing of classified intelligence with a hostile foreign power, saddens and sickens us because we grew up in an America that considered such behavior treason.  We find watching the party of Lincoln hem and haw about Trump’s actions especially troubling, since Republicans so often found it convenient to run campaigns challenging Democrats as unpatriotic. The idea an American President could act in such a way long seemed unfathomable to us, but if holding power means everything, we suppose Republican acquiescence to his behavior follows. Trump’s conduct, if unpunished, suggests we’ve become a nation of men, not laws.

Not over until it’s over   We must admit, however, to borrow another overused sports cliché, the fat lady hasn’t sung yet. Neither Mueller’s investigation nor the probes by Congress have come to fruition. Indeed, Mueller just picked up the baton. He enjoys a reputation for determination, independence, and fairness.  Time remains for good Republicans to step forward and become heroes by putting country ahead of party.