Crooked Trump?

The investigation of Michael Cohen, a lawyer and sometime fixer for Donald Trump, marks the start of a new phase in the unraveling of Trump’s presidency. Until now, the only Justice Department investigation of Trump has been conducted by special counsel Robert Mueller. Mueller’s appointment letter authorizes him to investigate Russian interference in the 2016 election and crimes arising from it. Any wrongdoing that is not connected to this interference arguably falls outside Mueller’s scope. In contrast, the Cohen investigation is taking place not under Mueller, but under the authority of the US attorney for the Southern District of New York. The Southern District is not restricted by any appointment letter, and its career attorneys have a mandate to uncover any criminal activity within their jurisdiction, whenever it may have occurred and for whatever purpose.

In the Cohen investigation, the FBI and federal prosecutors are seeking to break the confidentiality of Cohen and Trump’s attorney–client relationship. To do this, they must either show that Cohen was not genuinely acting as Trump’s attorney or that the two men’s communications were made with the intention of committing or covering up a crime or fraud. The fact that the Southern District prosecutors have already convinced a judge to issue a search warrant on one or both of these bases means they are likely to get access to much material that would otherwise have been unavailable because of attorney–client privilege.

Longtime Trump observers immediately began speculating that the prosecutors will find information that could implicate Trump himself in criminal conduct—or that Cohen could testify against Trump in exchange for a reduced sentence.¹ Potential crimes start with the possibility that Cohen violated federal election law, if he paid the porn actress Stormy Daniels $130,000 to remain silent about her affair with Trump without receiving repayment from Trump or the Trump campaign. The payment could be deemed an unreported donation to the campaign, which is a federal crime. Other possible crimes include structuring payments to avoid bank-reporting requirements—a commonly charged felony—or money-laundering related to the purchase and sale of Trump properties.

The legal route to holding Trump criminally liable for Cohen’s actions lies in the law of conspiracy. Since Cohen acted as a fixer for Trump, investigators could discover that on some occasions he acted criminally on Trump’s behalf. If so, a prosecutor could charge that Cohen and Trump were engaged in a criminal conspiracy, defined as an agreement to commit crimes in concert. Once two or more people have agreed to the general plan of action, any crime committed to advance the conspiracy counts as a crime for which both are criminally responsible—even if one acts without the other’s knowledge. For example, if Trump and Cohen criminally agreed to intimidate Stormy Daniels, and Cohen arranged for her to be threatened, then Trump could be charged with that threat, even if he did not know anything about it.

To make matters worse for Trump, there is little he can do to thwart the new investigation. Unlike the Mueller investigation, which Trump could end himself, the Cohen investigation in the Southern District would be extremely difficult for the White House to shut down. Trump could in principle fire the US attorney, a political appointee who serves at his pleasure, and appoint someone new with orders to end the Cohen inquiry. The civil servant prosecutors of the Southern District, however, cannot be fired except for misconduct. The strong tradition of prosecutorial independence means that, even if ordered to stop their investigation by Trump or a new US attorney, they would very likely treat such direction as itself a criminal obstruction of justice and find a way to keep digging.

Nor can Trump end the inquiry just by pardoning Cohen. All that would mean is that prosecutors would be able to force Cohen to testify by issuing a subpoena against him. Technically, Cohen could not invoke his Fifth Amendment right not to incriminate himself, because he would not be in jeopardy of a criminal conviction after the pardon. If Cohen refused to submit to the subpoena, he could be jailed for contempt of court—to which the pardon would not apply.

Federal prosecutors, then, could ultimately gather sufficient evidence to charge Donald Trump with crimes related to campaign contributions, structuring financial transactions, money-laundering, or conspiracy. These would be ordinary crimes, not connected to Russian election interference, not investigated by Mueller, and not anticipated when the FBI investigation of the 2016 election began.

These possible charges raise two pressing questions. May a sitting president be criminally indicted and tried for his crimes while in office? And may a president be impeached for criminal conduct that occurred before his presidency and had nothing to do with it?

Formally, these questions are separate, and they could be addressed independently of each other. But the best resolution of the first actually depends on the answer to the second. The Constitution should not be read to allow a sitting president who has committed serious crimes to hide behind his office and avoid accountability for them. Thus it would not be necessary to prosecute a sitting president if he may be impeached for crimes having nothing to do with his office. But if the Constitution only allows impeachment for crimes related to his office, then we ought to allow prosecution of a sitting president for unrelated crimes.

May a sitting president be indicted by a federal grand jury and prosecuted?² This question has not been answered in practice because no one has ever tried to do it. The grand jury investigating the Watergate cover-up named Richard Nixon as an unindicted coconspirator: the prosecutor, Leon Jaworski, believed he had sufficient evidence to indict Nixon for criminal acts but chose not to do so. That let him avoid the constitutional question of whether the president could be prosecuted, and allowed impeachment proceedings to begin—proceedings that convinced Nixon to resign.

Ordinarily, a conspirator bears full criminal liability for the conduct of the other participants in a conspiracy. The option of making it clear that Trump is subject to liability of this kind would be available to the Southern District prosecutors. Indeed, it would be the path of least resistance for them. By naming Trump as an unindicted coconspirator, they could communicate their belief in his guilt without precipitating a constitutional crisis by indicting him and daring him to claim that he was legally immune from prosecution.

Despite the fact that a sitting president has never been indicted, the constitutionality of doing so has been extensively debated outside the courts. On one side, unsurprisingly, are the special prosecutors. In 1973 Watergate prosecutor Archibald Cox received a memorandum from the liberal law professor John Hart Ely advising him that Nixon could be indicted while in office.³ (Jaworski, who succeeded Cox after the Saturday Night Massacre, chose not to indict Nixon once impeachment proceedings had begun; his team was apparently divided on the issue.) During the Whitewater investigation, Kenneth Starr solicited a memorandum by the conservative law professor Ronald Rotunda arguing at length that a sitting president could be indicted and convicted by the independent prosecutor.⁴

On the other side, also unsurprisingly, is the Department of Justice, acting on behalf of the president’s interest. In 1973 the Office of Legal Counsel (OLC) produced an internal memorandum concluding that all executive branch officials could be prosecuted while in office except the president, who was uniquely immune. Robert Bork, then solicitor general, echoed this view the same year in a filing connected to the indictment of Vice President Spiro Agnew on tax evasion and other charges; Bork maintained that the vice-president could be indicted and prosecuted but the president could not. In 2000, the OLC revisited the issue and wrote a new memorandum affirming its prior view that the Constitution precludes the indictment of a sitting president. That document currently functions as binding guidance within the Department of Justice, which means that the Southern District is unlikely to try to indict Trump.

The basis for the view that the president can be indicted is that no one is above the law. In Roman law, the emperor was famously outside and above the legal process: Princeps legibus solutus est, says the Code of Justinian. In contrast, republicanism holds that the president is merely first among equals. To allow him to avoid criminal responsibility for his conduct would be a manifestation of hierarchical monarchism, not egalitarian democracy.

Legally, the two strongest precedents on this side of the argument derive from the investigations of Richard Nixon and Bill Clinton. In holding that Nixon had to produce the Watergate tapes, the Supreme Court weighed the independent interests of the executive branch against the judiciary’s interest in executing the criminal law—and found in favor of the judiciary. The Court went out of its way to say that it was not deciding whether the president could be named as an unindicted coconspirator, let alone prosecuted. Nevertheless, the fact that the Court considered criminal justice more important than the executive’s claim of privilege—in a situation in which producing the tapes seemed likely to bring down the president—supports the idea of subjecting the president to prosecution in the interest of justice.

As for Clinton, the Supreme Court held that he could be subject to a civil suit by Paula Jones for conduct that took place before he was in office. The explicit rationale was that the president’s job did not exempt him from the legal process to which all citizens are subject. As in the case of the Watergate tapes, the Court did not decide the question of criminal prosecution. But the principle of the rule of law that applies to civil suits should apply with equal or greater force to criminal conduct.

To these legal arguments from principle and precedent may be added an intuitive, moral argument in the form of reductio ad absurdum: Suppose the president shot someone on Fifth Avenue, a scenario he himself alluded to on the campaign trail. Suppose further that a Republican House did not immediately impeach him, or that the Senate could not reach the two-thirds supermajority needed to remove him from office. Could we continue to believe in the rule of law if the president were able to avoid criminal prosecution as long as he remained in office? Our conclusion should presumably be the same if we imagine that the crime was committed before he entered office but revealed only once he was in the White House. The Constitution should not be interpreted to require such a moral outrage.

The strongest argument for exempting a sitting president from criminal prosecution, on the other hand, involves the structure of presidential government in a democracy. The democratic process selects the president. It would be countermajoritarian, then, for the president to be effectively blocked from doing his job by any mechanism other than a political one. An unelected prosecutor who brings charges against the president would be superseding the public, according to this view. She would be undertaking a form of regime change outside the accepted norms of governance. If the president were convicted and imprisoned, it would be impossible for him to do his job.⁵

For this reason, opponents of presidential indictment tend to emphasize impeachment as the sole constitutionally specified mechanism for presidential removal. The basic idea is that if a president is to be removed, the politically elected branches of Congress should do it. Some, like the law professors Akhil Reed Amar and Brian Kalt, take the argument further, maintaining that the structure of the Constitution implicitly prohibits prosecution of a sitting president by requiring impeachment and removal to precede criminal prosecution.

Opponents of presidential indictment use this sort of analysis to explain why the Nixon and Clinton precedents should not be read to allow prosecution of a sitting president. Nixon, they say, only had to produce documents under subpoena, an act that did not interfere with his ability to govern. Since the Supreme Court in the Watergate case explicitly balanced the interests of criminal justice against the interests of a functioning executive, they conclude, a similar balancing should protect the president from an indictment that would make it difficult or impossible for him to govern. Similarly, they argue, the civil suit against Bill Clinton was not supposed to interfere with his presidential duties. To the extent that, in practice, Clinton did find himself overwhelmed by the Jones suit and its fallout, this stands as an even stronger argument against extending the Clinton v. Jones precedent to criminal indictment.

The prospect that the president could be indicted by federal prosecutors raises a further structural problem: it would involve the head of the executive branch being charged by executive officers who are supposed to be working for him. It is tricky to conceptualize such an act of self-prosecution. The presidency is depicted in the Constitution as unifying executive power in a single figure. If prosecutors under the command of the executive can charge the executive with a crime, this upends the constitutional logic of a unitary executive. A president who can be prosecuted by his inferiors, runs the argument, is not truly their superior—and not truly the executive.

How is one to choose between these arguments for and against presidential indictment, both of which follow familiar modes of constitutional reasoning and seem persuasive in their own ways? The answer, I want to suggest, has to come from a functional real-world inquiry. We must ask whether a president implicated in an ordinary crime would be promptly impeached and removed from office, thereby allowing for criminal prosecution, or whether he might be allowed to remain in office, either by congressional negligence or by proper congressional interpretation of the Constitution. If the president would or should be impeached and removed, then we could conclude that he should not be indicted and prosecuted before that happens. If not, we would have good reason to opt for a constitutional interpretation that would allow his prosecution while in office in order to preserve constitutional democracy and the rule of law.

May the president properly be impeached and removed from office if he is named as an unindicted coconspirator for crimes that were committed before he took office and that are unrelated to the presidency? We have never had to answer this question in practice: the two presidents who have been impeached, Andrew Johnson and Bill Clinton, were both charged for conduct occurring while in office and arguably connected to it.⁶ Richard Nixon, who resigned before he could be impeached, was also implicated for conduct while in office.

Unlike the question of presidential indictment, which would necessarily be resolved by a court, the question of impeachment is ultimately political. Congress alone decides under what circumstances to start impeachment proceedings, and its judgment cannot be questioned in any other tribunal. Thus Congress could choose to impeach and remove the president for conduct occurring before his presidency and unrelated to it.

That said, Congress ought to follow the law. It is possible and (in my view) desirable to ask what the Constitution requires or allows when it says that a president can be impeached for “high crimes and misdemeanors.” Writing in these pages last year, Jacob Weisberg and I suggested that, properly understood, the word “high” that modifies the “crimes and misdemeanors” for which a president may be impeached refers to political acts connected to the office of the presidency.⁷ On this basis, we argued that it would not be proper to impeach a president for ordinary crimes that took place before he took office and that were unconnected to the presidency.

Assuming we were correct, a serious problem would arise if the president were named as an unindicted coconspirator for prepresidential crimes. If Congress believed, in our view correctly, that it should not impeach him, we would be faced with a president who is not subject to any form of sanction for his alleged crimes so long as he stays in office. Morally, this is a repulsive prospect. It seems obviously intolerable that a person known to have committed a felony should among other things supervise the nation’s prosecutions and pardons. Practically, a president who had been named as an unindicted coconspirator would have to govern in the shadow of potential future prosecution. He would be sorely tempted to make appointments and other decisions with an eye toward getting himself off the hook.

To avoid this morally and practically unacceptable situation, two possible answers present themselves. One would be for Congress to ignore the original and logical meaning of “high crimes and misdemeanors” and remove the president for conduct unrelated to office. The other would be for the prosecutors to indict the president rather than simply name him as an unindicted coconspirator.

However legally questionable the former course might be, it could nevertheless occur. If Trump were implicated in serious crimes by strong evidence, Congress would come under heavy pressure to impeach and remove him. It is even possible that it would be much harder for congressional Republicans to resist impeaching Trump for prepresidential crimes than for circumstantial evidence of electoral collusion with Russia—if, that is, the president is clearly proved to be a crook.

In practice, however, it is also possible that Republicans could deny even relatively strong evidence against Trump, claim that the Department of Justice overreached, and rely on Trump’s base to keep voting for them (and him) notwithstanding the evidence. This was the essence of Trump’s point when he boasted that he could shoot someone without losing support. If he was correct, he could avoid impeachment and removal even if there were strong evidence that he had committed ordinary crimes.

In practice, the Southern District could try a sequential experiment: first, it could name Trump as an unindicted coconspirator. If Congress then impeached him, the prosecutors would not have to take further steps until after Trump was out of office. If Congress dragged its feet, the Southern District could take a deep breath and try to convince the attorney general to authorize a prosecution, despite the contrary opinion from the Office of Legal Counsel.

Yet it is dissatisfying to stake the fate of rule-of-law governance on the possibility that Congress would ignore the best reading of the Constitution. The fact that Congress might under some circumstances impeach Trump for prepresidential crimes doesn’t make it legally appropriate. As Cass Sunstein argues in his excellent primer on impeachment, we should ideally evaluate questions about impeachment behind a self-imposed veil of ignorance.⁸ That is, we should try to decide on the constitutional rules of impeachment based on principle, without thinking of concrete scenarios connected to specific politicians we like or despise.

From this point of view, it seems most persuasive that prosecutors should be able to charge a sitting president with ordinary crimes. Insofar as it restricted impeachment to “high crimes,” the Constitution did not directly address a circumstance like this one. Low crimes too must be addressed—and a well-functioning constitutional order must have a mechanism for doing so other than by making up new rules for impeachment as we go along. The Constitution, therefore, is best read to allow prosecution of a sitting president for ordinary crimes, even if it would be prudent for prosecutors to wait and see if Congress impeached before taking the very serious steps of indictment and trial.

If prosecutors did try to bring charges against a sitting president despite the OLC’s guidelines, they would still have to confront the problem that the president is prosecutor-in-chief. But this may seem more of a problem than it is. The Department of Justice has evolved since the founding. It now relies on career civil servants, not political appointees, to prosecute most ordinary criminals. Those lawyers, who are entitled to civil service protections, have long adopted a nonpartisan, even apolitical ideology, one in which law-enforcement decisions have nothing to do with the politics of the president who sits at the top of the executive branch.

This gradual, hard-won depoliticization of prosecution takes some of the force out of the objection that a president should only be removed by a political process. In a rule-of-law system, not every decision need be made politically. The decision to prosecute those who break the law in significant ways should be something closer to automatic, and may be made by officials whom we trust to act on the basis of sound professional judgment, not partisanship.

That is why we accept the investigation and prosecution of congressmen, senators, and other elected officials who have committed crimes. Elected by the public, they are effectively removed from office by unelected prosecutors who go after them. Judges, who must be impeached to be removed under the Constitution, have sometimes been indicted and charged with crimes while still in office. Spiro Agnew was indicted, pleaded no contest to a felony charge of tax evasion, and resigned.

It may seem strange to think of the executive branch prosecuting the executive. But in the end, pragmatic reality should outweigh high formalism when it comes to preserving constitutional government. In the matter of the Watergate tapes, the case was called United States v. Richard Nixon. If it becomes necessary, the Department of Justice, acting on behalf of the people, should bring the case of United States v. Donald Trump.

—April 26, 2018