When Will It End? How Does It End?

How and when does this end, will it end? This malignant presidency.

Every day the likelihood that Donald Trump will leave the White House before the end of his term Jan. 20, 2021 seems to increase except — except how exactly would that happen, how exactly could or would he be forced to go?

By impeachment? By indictment and resignation and/or conviction? By resignation alone in the face of ever stronger currents of turmoil and scandal?

Let’s look at those.

Lots and lots of people say impeach him. Tom Steyer says so and has spent many millions of his billions of dollars to say so. But then the foolish Mr. Steyer knows about public life only that which he can purchase. The next thing he purchases should be a copy of the Constitution. If Steyer can’t afford one, I will lend him mine.

Perhaps, in fact very probably some among those who read these posts are included among the many who say impeach.

But we all know or should — though, believe it or not, not everyone does — that impeachment is a two-step quasi-legal and wholly political constitutional mechanism. In the first step, set down in the second clause of Section 2 of Article I, the article establishing the House and Senate, the Constitution says the House, “… shall have the sole power of impeachment”. It is given to the House because the writers of the Constitution saw the lower chamber as the representatives of the people. So those in the people’s house are given the power to accuse on behalf of the people.

It is the power to accuse a federal officer of bribery, treason or other “high crimes and misdemeanors”, in effect to issue a political indictment much as a grand jury would issue a criminal indictment.

The language doesn’t specify the proportion of votes needed and therefore the rule is that it takes a simple majority of those voting. There are 435 members of the House so if all were present for a vote on impeachment at least 218 would be required but if a lesser number than a simple majority of that number.

Democrats will have at least 235 seats in the new House so, on the face of it, they could do that — vote to impeach without a single Republican vote. Some Democrats might have a reelection calculus that adds up to voting no or not being present for any such vote. But for the moment let’s assume they would all attend an impeachment vote and would all vote yes.

Should they? Absolutely not, unless at least — at least — 20 Senate Republicans are certain to vote to convict because it is the Senate that tries an impeachment presided over by the Chief Justice of the U.S. Supreme Court. The Constitution’s writers saw the Senate as a representative not of the people but of the states. That its equal state membership disproportionately represents the least populated states was part of the compromise that assuaged concerns of small sates that feared the power of  the larger states.

It is this that gives Republicans today their edge in the Senate, a body which constitutionally is not based on one-man/one vote but on equal state representation and weights conviction on impeachment accordingly. To convict on impeachment the Constitution  requires two-thirds of the votes of the Senate. There being 100 senators this is 67 votes.

There is neither political or legal logic or a plain sense reason for House Democrats to cast themselves onto the rocks and shoals of political turmoil and ruin with a futile  gesture without certainty the new 53-47 Republican Senate majority would provide the  Republican votes needed to convict (and what guarantee is there of 47 votes on the Democratic/Independent side for conviction? Et tu Joe Mancin?).

How outrageously bad would it yet need to become for Republicans to signal their votes are there for impeachment? Given how outrageously crazy bad it already is — and with no such signal from Republican — Democrats would be mad (as in crazy) and downright stupid to vote impeachment, letting the Republican Senate majority leave them to hang in the wind.

If not impeachment then the second possibility is unforced resignation, beginning with one in which Trump decides the decks are so stacked against him (like a blackjack game his situation now is a multi-deck game). But no matter how bad it looks or gets by implication, implication is not indictment or prosecution nor is it impeachment. Then why would he resign if there is no immediate legal or political  threat except bad press? He wouldn’t and he won’t is very likely the best bet on that, especially since his best defense is holding the office.

Then if not impeachment or unforced resignation what about resignation at the point of an indictment?

Well we are told by the many talking-head legal experts who populate cable news and Op-ed pages of the New York Times, the WSJ and the Washington Post among others, that it is the policy and legal position of the U.S. Department of Justice that a sitting president cannot be indicted.

The Constitution does not say that. It does not say a president cannot be indicted while in office. Nothing in the Constitution says this. Repeat, nothing in the constitution or law says that a sitting president cannot be indicted while in office. Nothing says so.

The impeachment clause of the Constitution is at Article II, Section 4 – the very last paragraph in the article that establishes the presidency. It says (the odd capitalizations are those of the original document):

“Section 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.”

Suppose he is removed by impeachment, can he be charged criminally?

Here’s the answer to that  — from the Constitution, Article II, Section 3.

“Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”

This paragraph is the key to the cloak against indictment of a sitting president that is the policy of the Department of Justice as formulated during the turbulent Nixon presidency as the nation watched Watergate unfold. That’s why President Ford pardoned Nixon after Nixon resigned and turned the presidency over to Ford:  To exempt Nixon from the criminal charges and trial to which Nixon clearly remained exposed out of office.

Any plain reading — and lawyers and courts are very big on plain reading of language — is clear. In plain language the Constitution says the only penalty for conviction on impeachment is removal from office. It says as clearly that such does not relieve the person so removed from criminal charges, trial and punishment if he is removed by the Senate but, in fact, leaves him liable to such prosecution. It says that.

The Constitution does not say this applies only after an impeachment conviction. It does not say it can or can’t apply during an impeachment proceeding. It does not say it can’t happen if there is never an impeachment. It does not say criminal process cannot be initiated and carried out before there is impeachment or even during a trial on impeachment charges.

The Constitution is silent as to any and all of that. It says only that a removed president, can be accused, tried, convicted and punished in the ordinary administration of criminal justice after his conviction by the Senate on impeachment charges. But it never says that can’t happen before or during impeachment proceedings, which means — or should mean — that it very well can.

Policy is not law. It’s policy. Policies changes all the time don’t it? Yes they do, witness the past two years. If the facts are egregious, immediate, ongoing and exigent there is no Constitutional reason the U.S. Department of Justice could not reverse its policy or make an exception in the case of Donald Trump and seek and obtain a federal grand jury indictment against him on any and all likely and possible charges.

You do not need to be a lawyer or constitutional expert to know that, though the lawyers and constitutional experts want the rest of us to think only they know. It’s about the plain language and the very plain fact that there is no constitutional language whatsoever that cloaks a sitting president from criminal process.

Any lawyer for Trump could argue the opposite. Any court could agree by interpreting and creating an understanding that simply clearly doesn’t exist in the unadorned, pertinent, applicable Constitutional language.

Any such judicial decision would be wrong, in error as the courts say, and, again, you don’t have to be a lawyer or constitutional scholar to know that. You only need common sense and the ability to read words on a page to know this; to know that in this case:

 It is the words that are not on the page — not in the Constitution — that make plain that a president has no criminal immunity while holding office. There is none because there are no words that say there is.

No one know when the investigation by Special Counsel Robert Mueller will end. From the looks of it that could be well into 2019. But let’s suppose, whether by the Special Counsel or the U.S. Attorney for the Southern District of New York, there comes a federal grand jury indictment against Trump would he have to resign? Nothing in the Constitution addresses this except tangentially perhaps the 25th Amendment.

Could an indictment trigger that complex mechanism to remove Trump at least temporarily from the presidency? It could conceivably, but that requires the Vice President and a majority of the president’s cabinet to declare to Congress a president’s incapacity. Can you imagine Mike Pence and the toadies in Trump’s cabinet doing that? Yes, anything is possible, but what is possible is in no way necessarily or remotely probable.

The 25th really is designed and intended to deal with physical or mental incapacitation of a president, not criminal charges against a president though an argument could be made that a president under indictment is incapacitated.  It would get very, very complicated and, if resisted by Trump, likely wind up before the Supreme Court, and that takes time. But we are already on the cusp of the third year of the president’s term and the first year of the next presidential campaign so time is more than of the essence.

Of course an indictment might give Senate Republicans cover to support conviction on impeachment. But they would surely have to announce enough votes before Democrats could dare rely on that. Likely? Again, anything is but that is really, really, really far-fetched.

Then all this potentially is an enormous, mysterious mess that would take the nation places it has never been, harden the divided arteries of the body politic the more and be so much more devil’s play in these intensely partisan times.

Ok then, let’s take another look at just straight up resignation. Well if a president can’t be indicted while in office, it stands to reason he’d want to hang on to the office as long as he could — even run for it again to keep its protection not two more but six more years.

But suppose, whether indicted or simply facing the certainty of criminal charges after leaving office, the president wants to leave office to get it all over with but wants a deal to go before he’ll go. No one gives something unless he gets something in return, least of all a “deal maker”.

What might be the one and only deal Trump could make? What is the one thing he has to deal away in the end, the one and only thing Trump might think is worth the presidency, the one thing prosecutors might think is a big enough to receive in return from granting immunity from prosecution?

What is the one thing Trump has to offer to get him to give up the office? Well it’s almost certainly the office itself isn’t it?

But who does a president negotiate with to resign and avoid all criminal penalties? The Congress? No, Congress has no power to bring a criminal prosecution or prosecute criminal charges or make any such deal.

Who does? Maybe the U.S. Department of Justice.

So let’s start with the DOJ and all its parts. Would this mean Trump would need and want an agreement for no prosecution by the Special Counsel, the U.S. Attorneys in Washington, D.C., New York’s Eastern District, southern Florida and probably any other federal district where he owns property (that’s a lot of places)?

But his lawyers would  probably also tell him he’d need immunity from charges and prosecution by the Department of the Treasury (IRS among others), the SEC and who knows what other federal agencies with criminal law enforcement authority and powers over him and his businesses.

Who has the blanket authority to grant that kind of sweeping, total immunity? Is it an attorney general who would make the deal with the president who appointed him? And if not, then who? It’s a question probably never asked before this way.

Let’s assume there could be such a deal for blanket federal presidential criminal immunity, what about the State of New York and District Attorney of Manhattan? They each have process relating to Trump, his businesses, foundation and family members and their businesses. Would the state and city sign on and, even if they could and would, can they constitutionally subordinate the authority of New York State to federal interests?

Then too, what other state and local  jurisdictions would be or could be bound by such an agreement? Have crimes been committed at Mar-a-Lago, by whatever legal entity owns and operates it? Would the Florida attorney general have process there or perhaps Palm Beach County?

Of course in all of this multi-part scenario, even if the most complete deal could be sealed to deliver Trump from any and all prosecution by any and all possible authorities, is personal immunity enough, would it be enough for him to go?

What about Jared, Ivanka, Donald Jr., Eric, The Trump Organization and all the individual businesses and properties owned by any and all of them? Would he want protection for them as well? Does any law enforcement agency have the power to grant all of that to all of them? Or would he be willing to throw them under the bus to the mercies of law enforcement agencies galore?

Lots and lots and lots of questions but no sure answers except that getting Donald Trump out of the White House by anything short of electoral defeat in 2020 is more, far more complicated than it looks no matter how it looks to anyone.