Wednesday, December 12, 2018

Blogger Candidate Forum: Impeachment Or Indictment

Hello Everyone: 

It is Wednesday, which means it is time for Blogger Candidate Forum. Big news from Trumpland, the president's former personal lawyer, Michael Cohen, was sentence to three years for various crimes, including arranging hush payments to Stormy Daniels and Karen McDougal for alleged affairs.  Attorneys for former National Security Adviser Michael Flynn asked the judge in his case for no jail time, because Mr. Flynn was supposedly tricked by Special Counsel investigator into perjury. We all await the sentencing memo for Paul Manafort.  Mr. Manafort admitted he lied to the special counsel, even though he had a cooperation agreement.  Should be good. Finally, Washington D.C. is still chattering over House Minority Leader (for now) Nancy Pelosi's (D-CA) epic takedown of Mr. Trump's, um shortcomings.  Definitely meme worthy. This brings us to today's edition "The Impeachment Chronicles."

We are at crucial moment in the ongoing investigation into possible collusion between the Trump campaign and Russia.  The question is no longer did the Russians meddle witht 2016 elections; the question is how deep did go?  The answer is deep enough.  The Washington Post reported on December 9, 2018 that throughout the president's 18-month campaign, Russian citizens made contact Mr. Trump's family members and friends, as well as peripheral figures (; Dec. 9, 2018; date accessed Dec. 12, 2018). Former American ambassador to Russia Michael McFaul  told The Post,   It's extremely unusual,... Both the number of contacts and the nature of the contacts are extraordinary. (Ibid)

The filings by the special counsel also laid out moments when the Russians took their cues from then-Candidate Trump.  To wit, in July 2016 Mr. Trump said at news conference, Russia, if you're listening, I hope you're able to find to find the 30,000 emails that are missing (Ibid), referencing the deleted emails of then-candidate Hillary Clinton. That day, the Russians made their first attempt to hack Democratic National Committee's emails and pass them to Wikileaks (Ibid; July 13, 2018). Two days after the election, an anonymous Kremlin official created a stir, declaring that Russian government was in contact with the president-elect's associates.  Deep into 2017, right up to today, the president continues to deny there was any contact.  Obviously that no longer holds true.  This, along with admissions by Mr. Cohen make a person wonder which would be worse for Mr. Trump, impeachment or indictment?

Impeachment is an inherently political process.  The United States Constitution gives the House of Representatives the sole power to impeach a federal official--ie the president--and makes the Senate the court for impeachment trials (; date access Dec. 12, 2018). Although the power of impeachment is limited to removal from office, the officer is disqualified from holding future office.  Any fines or possible jail time for crimes committed while in office are left to the civil and criminal courts (Ibid). 

Indictment is matter for the courts. An indictment formally charges a person with a criminal offense(s). An indictment allows government prosecution of a suspect for offenses listed in the indictment (; date accessed Dec. 12, 2018). The grand jury (like the SCO's grand jury) functions as an independent investigative body that assesses whether or not there is enough evidence to bring criminal charges against a suspect. (Ibid). Either prospect does not bode well for Mr. Donald Trump.  The question is which is worse?

Impeachment a president is not always the most politically wise or legal option.  Yes, the Democrats will control the House beginning in January and have the votes to impeach but the Senate is still controlled by the Republicans, which could make removal from office more difficult. Further, it could backfire on the Democrats, like it did for the Republicans in 1998 when they try to remove then-President Bill Clinton for lying to a federal grand jury.  Can a president even be indicted while in office?  The short answer is it depends.

There never has been any sort of "longstanding policy against indicting a president.  However consider this: In 1973, Justice Department's Office of Legal Counsel issued a memo stating "that a sitting president should not be indicted" (; June 18, 2018; date accessed Dec. 12, 2018). This memo was essentially repudiated within a short period of time by the Justice Department in the filing United States v. Nixon (Ibid). In 1998, members of independent counsel Ken Starr concluded that they could indict President Clinton (; Ju,y 22, 2017; date accessed Dec. 12, 2018).  Mr. Starr opted to deliver a report to Congress in lieu of an indictment.  Rudy Guiliani, the president's current personal attorney, told reporters earlier this that the SCO has ruled out the possibility of indicting the president while he was still in office (washingtonpost; May 16, 2018; date accessed Dec. 12, 2018).  Eventually, Mr. Trump will leave office and therefore, become Citizen Trump, legally indistinguishable from Michael Flynn, Michael Cohen, and Paul Manafort.

Representative Adam Schiff (D-CA), the incoming chair of the House Intelligence Committee, told CBS News, 

Therr's a very real prospect that on the day Donald Trump leaves office the Justice Department may indict him, that he may be the first president in quite some time to face the real prospect of jail time,... We have been discussing the issue of pardons that the president may offer or dangle in front of people.  (; Dec. 10, 2018; date accessed Dec. 12, 2018)

The bigger question is will whoever replaces him pardon Mr. Trump?

Hypothetically, Mr. Trump could be charged with violating campaign finance laws stemming from hush money paid to Stephanie Clifford (aka Stormy Daniels) and Karen McDougal. In August Mr. Cohen pleaded guilty to not reporting the payments as illegal campaign contributions.  Last Friday's sentencing memo all but identified the president--Individual-1--as an unindicted co-conspirator. Prosecutors wrote,

With respect to both payments, Cohen acted with intent to influence the 2016 presidential,... In particular,band as Cihen himself has now admitted, with respect to both payments, he acted at the direction of Individual-1... (; Dec. 11, 2018; date accessed Dec. 12, 2018) 

Mr. Trump could also face obstruction of justice-related charges after he leaves office.  There is a general consensus (; May 16, 2017; date accessed Dec. 12, 2018) that he did meet the legal threshold when he fired FBI Director James Comey last year.  Since then, his legal fortunes have deteriorated; following Mr. Manafort's conviction in August, the president dangled the possibility of a pardon if Mr. Manafort did not cooperate with the SCO, which may be akin to bribery (Ibid; Aug. 23, 2018).  If that was not bad enough, his tweets about Mr. Manafort and Roger Stone raised the specter of witness tampering charges (; Dec. 3, 2018; date accessed Dec. 12, 2018). However, the big unknown is the president's personal role in the overarching question of the Russia investigation: did his campaign collude with Moscow to corruptly influence the 2016 elections?

As things stand right now, the Trump-Russia collusion is so thoroughly supported by available evidence to be disputed. There are enough documented connections between both parties to ignore, too many opportunities to cooperate to discount, and too many attempts to impede the investigators to afford the benefit of the doubt. The question here is was this a hard or soft collusion.  

Soft collusion implied cooperation between the Kremlin and Trump campaign without any explicit quid pro quo. The Russians made their quid clear: "her emails," stolen emails from the DNC, and the prospect of a lucrative real estate deal. The Russians made also their quo quite clear.  Then-candidate Trump did not help his case when he called NATO obsolete and called for better relations with Russia on the campaign trail.  Certainly his kowtowing to President Vladimir Putin in Helsinki made it abundantly clear who he favors. 

Strange Russian contacts is not unique to the Trump campaign. One reason Paul Manafort's plea arrangement fell apart was he kept lying about his contact with political consultant Konstantin Kilimnik. Michael Flynn communication with Ambassador Sergey Kislyak, after his was fired by President Barack Obama.  Then there is the man in the middle Jared Kushner and his request to open a back channel to Moscow. With all this under-the-radar communication, it would be a little hard to believe that there was not some sort of explicit quid pro quo agreement i.e. hard collusion.  The special counsel's filings have made it clear that Russian connections to members of the Trump campaign went very deep, reaching the president's three eldest children.  Of course, it is entirely possible that Mr. Trump was unaware of all the shenanigans. Kind of hard to believe it. 

The prospect of either impeachment or indictment offer Mr. Trump and his team no real good options.  Run for re-election and face the specter of impeachment.  If he continues his re-election campaign, he does so a candidate extremely vulnerable to challenge from his own party.  End his campaign or lose re-election and face indictment.  Mr. Trump's closet confidants have to ask the hardest question of all: Just how much is the presidency worth to him?

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