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Trump Impeachment

A potential Trump indictment would still leave crimes unpunished

Cyrus Vance, the Manhattan district attorney, appears to be closing in on former President Donald Trump. The Trump Organization’s chief financial officer, Alan Weisselberg, is in the prosecutor’s crosshairs and may turn state evidence on Trump in order to save his own skin.

Weisselberg’s son is also in trouble, presumably for not reporting compensation from Trump as taxable income, giving Weisselberg even more incentive to cooperate with Vance.

Vance’s office has finally obtained the Trump Organization records subpoenaed by a grand jury after Trump tried unsuccessfully to block the subpoena in federal court. As I pointed out in a Supreme Court amicus brief submitted with University of Pennsylvania professor Claire Finkelstein in Trump v. Vance, it was absurd for Trump to have argued that the enumerated powers of the president under Article II of the Constitution included a right to block a grand jury subpoena of his personal business records. But it is the crimes that Trump allegedly committed in office that are the greater danger to our republic.

Trump is in plenty of other legal hot water, including an investigation by the New York state attorney general; the investigation into Ukraine and other matters by federal prosecutors in the Southern District of New York, which recently led to carrying out a search warrant on Rudy Giuliani’s apartment; an investigation in Fulton County, Georgia, into whether Trump solicited election fraud last November in violation of a state criminal statute; and the investigation into his actions before the Jan. 6 riot at the Capitol.

We still don’t know if, when and where Trump will be indicted and if so for what crimes, but he surely has a lot of legal exposure.

At some point, we need to decide if we really do embrace a notion of presidential power under the Constitution that allows a president to fire anybody for any reason, even to obstruct justice; that allows a president to conduct foreign policy any way he or she wants, even if to coerce a foreign power to interfere in the next U.S. election; that allows a president to use control of the military any way he or she wants, even if to “redo” a lost election; and finally, that allows a president, if unsuccessful in all of these things, to incite followers to stage an insurrection at the Capitol.

What’s most troubling is that throughout Trump’s presidency, he believed himself to be immune from criminal prosecution and that the powers of the presidency entitled him to do anything he wanted to do. The same president who Vance suspects of violating the law in conducting the business of the Trump Organization was also running the presidency like a criminal enterprise.

Trump had plenty of enablers both inside and outside the government. First and foremost was Congress, which, while both houses were in GOP control, did nothing to constrain Trump. For the first two years of the Trump presidency, there were no serious investigations into potential malfeasance in office, and some powerful committee chairs such as Rep. Devin Nunes, R-Calif., colluded with the White House to give advance information about where investigations were headed.

The same president who Vance suspects of violating the law in conducting the business of the Trump Organization was also running the presidency like a criminal enterprise.

Congress also did nothing when Trump fired FBI Director James Comey in order to obstruct the Russia investigation — a sharp contrast to the bipartisan uproar in Congress in 1974 when President Richard Nixon fired the Watergate special prosecutor, Archibald Cox. Congress also did nothing when Trump repeatedly attacked special counsel Robert Mueller in 2017 and 2018, and — as we learned later from former White House counsel Don McGahn — tried to fire Mueller.

Second were the lawyers and legal academics who lent a helping hand to Trump’s alleged obstruction of the Russia investigation and then his quid pro quo extortion of Ukraine, and more. William Barr, as a private sector lawyer, wrote an 18-page memo for lawyers representing defendants in the Mueller investigation in which Barr ridiculed Mueller’s view that a president, like anyone else, can be prosecuted for obstruction of justice. Barr also interviewed with Trump to explore the possibility of joining his legal defense team.

Barr’s memo apparently was so good that Trump, instead of adding Barr to his defense team, appointed him attorney general so he could supervise Mueller. A federal court just a few weeks ago found that Barr, in 2019, failed miserably in this job, among other things misrepresenting to Congress the findings in the Mueller investigation.

Legal academics, in pursuit of attention from the media and Trump, also chimed in to attack the Mueller investigation. I repeatedly confronted Alan Dershowitz’s unfair attacks on the character of Mueller and his team. Likewise, Jonathan Turley’s attack on Mueller for hiring lawyers that had a “history of expansive interpretation of obstruction of justice.”

These pundits, seeking to discredit Mueller at every turn, provided apparent justification for Barr to belittle the Mueller report and misrepresent its findings — particularly the findings in Part II of the report on obstruction of justice — in his communications with Congress.

Then there were the academics, some of them professed “liberals” who embraced an expansive vision of presidential power that sent Trump the message he wanted to hear: that as president he could do anything he wanted to do with impunity. Cass Sunstein argued that a sitting president could not be indicted for anything before being impeached.

This extreme iteration of presidential immunity theory led Trump’s lawyers to argue before the U.S. 2nd Circuit in Trump v. Vance that the president could shoot someone on Fifth Avenue and not be investigated or prosecuted. Trump lost that case in both the 2nd Circuit and by a wide margin in the Supreme Court.

Professor Akhil Amar in 2017 testified before the U.S. Senate that Congress could not constitutionally protect Mueller from being fired by Trump. If Trump fired Mueller — as Nixon had fired Cox in 1974 — nothing could be done because Trump had the right to do so.

Amar offered a consolation prize for his fellow liberals. Congress, Amar suggested, could instead use

With cheerleaders such as these embracing expanded notions of executive power, it is no surprise that Trump believed himself to be beyond the rule of law.

its powers to establish in the Senate a bipartisan Presidential Oversight Committee to coordinate with Department of Justice investigations of the president. Never mind that the Senate throughout Trump’s presidency was controlled by the GOP. This same Senate that Amar wanted to entrust with conducting bipartisan investigations of the president was so divided that it heard no witnesses in either of Trump’s impeachment trials.

With cheerleaders such as these embracing expanded notions of executive power, even if some of them did not embrace Trump himself, and with Barr in the Justice Department, it is no surprise that Trump believed himself to be beyond the rule of law.

And Trump continued that way until the very end — believing that he had unfettered control of the executive branch to the point where he could commit crimes with impunity. After losing the election, he met with senior White House officials to consider declaring martial law and redoing the election in Pennsylvania and other states, actions that Finkelstein and I found to be criminal sedition.

Then, on Jan. 6, Trump committed yet more acts of sedition and incitement leading to the mob takeover of the Capitol during the counting of electoral college votes. These actions, Finkelstein and I opined, also violated criminal statutes.

These included “rebellion or insurrection” (18 U.S. Code § 2383), formulated as a conspiracy crime (18 U.S.C. § 371), or “conspiracy to engage in rebellion or insurrection.” Alternatively, Trump could be charged with “seditious conspiracy” (18 U.S.C. § 2384), and under the federal complicity statute (18 U.S.C. § 2).

Trump has not yet been charged with any of these crimes in office, and some of these crimes perhaps cannot successfully be prosecuted if one believes the expanded notions of executive power embraced by Trump’s defenders — as well as by some of Trump’s detractors who still defend the concept of a constitutionally immune and all powerful president.

Vance will not face many of these constitutional arguments because he is investigating the private actions of the Trump Organization rather than abuses of presidential power. Vance’s confrontation with presidential power was only in the yearlong delay caused by Trump’s unsuccessful efforts to quash Vance’s subpoenas, which were upheld by the Supreme Court.

If criminal law can define no limits to presidential power, our president will be more akin to a mafia don than to the head of a democratic republic. That is not the Constitution I believe in and I doubt it is the Constitution our forbearers believed in when they drafted and ratified it more than 230 years ago. In the America most of us believe in, no person is above the law, even the president.

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