Federal prosecutors filed a raft of court documents on Friday involving former Trump consiglieri Michael Cohen and Paul Manafort. The biggest revelation in these documents is that the U.S. Attorney’s office in Manhattan now believes that Donald Trump himself committed criminal violations of the law.
The crucial words here are “acted in coordination with and at the direction of Individual-1.” The same document identifies “Individual-1” as someone who Cohen used to work for and who “began an ultimately successful campaign for the President of the United States,” so there’s no question who this term refers to. And, if Trump directed Cohen to commit criminal activity, then Trump is also implicated in those crimes and subject to prosecution.
So that’s the good news for anyone hoping to see Trump perp-walked across their television screen some day. The bad news is that the likelihood that Trump will experience any consequences for his actions — even if there is ironclad proof that Trump committed very serious crimes — is close to zero so long as Trump occupies the White House.
Simply put, the framers of our Constitution had no idea how politics actually work. And that left us with a Constitution that offers no good remedies against a criminal president.
The drafters of the Constitution imagined that they were creating a document where, in James Madison’s words, “ambition must be made to counteract ambition.” Madison saw a government of strivers, each jockeying for individual advancement. If the president turned out to be a criminal, each individual lawmaker could become famous by railing against that president’s perfidy — and hope to advance their own career in the process.
At the same time, Madison and his contemporaries largely viewed political parties with disdain, and did not anticipate the role they would inevitably play in American politics. “There is nothing I dread So much, as a Division of the Republick into two great Parties,” future President John Adams wrote in a 1780 letter. A two party system “in my humble Apprehension is to be dreaded as the greatest political Evil, under our Constitution.”
Similarly, Madison anticipated that our “well constructed Union” would have a “tendency to break and control the violence of faction.”
He was wrong. As anyone familiar with the musical Hamilton can tell you, American leaders splintered into factions and then into two organized political parties — the Federalists and the Republicans — almost immediately.
And that brings us back to the (alleged) crimes of Donald Trump. The method the Constitution contemplates for removing a criminal president is impeachment, but removing the president requires “the concurrence of two thirds of the members present” for a Senate vote.
In the incoming Congress, Democrats will control only 47 Senate seats, including independent Sens. Bernie Sanders and Angus King, who caucus with Democrats. That means that 20 Republicans would need to vote against Trump in order to remove him by impeachment.
If you think that 20 Republicans are going to vote to remove a president who still has an 89 percent approval rating among Republican voters, then I hope you’ve been comfortable living under a rock for the last two years.
So Trump is all but certain to serve out the remainder of his term, and that presents a closely related problem. In 1973 and again in 2000, when different presidents faced criminal allegations, the Justice Department’s Office of Legal Counsel concluded that “a sitting President is constitutionally immune from indictment and criminal prosecution.”
The reason for this conclusion is as much practical as it is textual. “A necessity to defend a criminal trial and to attend court in connection with it,” the Nixon era memo read, “would interfere with the President’s unique official duties, most of which cannot be performed by anyone else.”
Indeed, the problems raised by a criminal prosecution of a sitting president are even worse than this memo suggests. Suppose that the Justice Department successfully convicts Trump of a crime and Trump receives a prison sentence. Trump would be incarcerated, but he would still be president. Again, the Constitution offers impeachment, not an ordinary conviction, as the proper method to remove a sitting president from office. Tossing Trump in a prison cell will not relieve him of his office.
It should be obvious that such a situation is untenable. So long as he is president, he is the only official who can sign bills into law, the only official who can nominate judges and other high officials, and the only official who can act as commander-in-chief of the military. Top generals and admirals would literally have to brief Trump in prison on actions that he must authorize. Maintaining the secrecy of these briefings would be a nightmare.
So there are very good reasons why a criminal prosecution cannot proceed against Trump until after he leaves office, but there is no realistic chance that Trump will be removed before his current term is over. The framers simply did not anticipate a situation where a political party would organize to protect its criminal leader. And the nation is likely to suffer for that oversight.