Why the GOP's 'new at this' defence of Donald Trump might just work
During campaign season, Trump repeatedly insisted that he was uniquely qualified for the presidency. Now Republicans say he needs time to learn on the job.
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WASHINGTON—U.S. President Donald Trump’s defenders would like you to know that he doesn’t know important things.
They’re not saying he’s stupid. They’re saying he is somewhere between ill-informed and clueless. To hear some Republican members of Congress tell it, Trump did not attempt to obstruct justice in his Oval Office words to James Comey in February — he just didn’t understand how a president is supposed to interact with the director of the FBI.
“The president’s new at this,” House Speaker Paul Ryan said last week. “He’s new to government, and so he probably wasn’t steeped in the long-running protocols.”
Legal experts say this argument — what former Watergate assistant prosecutor Nick Akerman called “the idiot defence” — would have trouble succeeding in a court of law. But here’s the key thing: it doesn’t have to.
The U.S. Constitution does not explicitly prohibit the prosecution of a sitting president, and there are a few scholars who say that prosecution is allowed. The overwhelming view of scholars of constitutional law, however, is that prosecuting a president is indeed unconstitutional.
The remedy for offences committed by the president, they say, is the impeachment process.
Which means that politicians could conceivably decide Trump’s fate. Which means that arguments designed for the court of public opinion matter more than arguments designed for judges and juries.
“Donald Trump is not going to be indicted. He’s not going to be tried. At least, those things are not going to happen while he’s president; they probably will never happen,” said Louis Michael Seidman, a constitutional law professor at Georgetown University. “So the technical legal definition of obstruction of justice — the instructions that a judge would give to a jury about convicting him — just don’t matter. Because there’s never going to be a judge and there’s never going to be a jury.”
Comey’s testimony last week, in which he alleged that Trump improperly attempted to get him to shut down the FBI investigation into former national security adviser Michael Flynn, has added new urgency to the impeachment drumbeat among Democrats. On Monday, California Rep. Brad Sherman released articles of impeachment proposing to impeach Trump on the grounds of obstruction of justice.
“The evidence we have is sufficient to move forward now,” Sherman wrote. “And the national interest requires that we do so.”
For the time being, as Sherman acknowledged, there is essentially no chance Trump can be forced out of office. Trump-backing Republicans control the House, which decides on impeachment, and also the Senate, which gets to hold a kind of trial to decide whether an impeached president actually gets booted.
The political situation could change a bit after the Nov. 2018 congressional elections, in which Democrats may have a chance to take back the House. But even if Democrats earned a House majority and voted to impeach, it would be difficult to force Trump out. The Constitution requires that two-thirds of the Senate vote in favour of removal, and the Democrats currently control only 48 of 100 seats.
The case for impeachment could get an eventual boost from the investigation being conducted by a special counsel, former FBI director Robert Mueller. Clinton was impeached in 1998, in part over alleged obstruction, after the independent counsel who probed his affair with an intern submitted a report to the House.
That counsel, Ken Starr, was originally appointed to probe a failed Clinton real estate deal, then started digging into other controversies. Mueller has a far tighter leash than Starr had, but his probe might too become broader than its initial focus. Mueller’s mandate gives him the authority to pursue not only any links between Trump’s campaign and Russia but “any matters” to emerge “directly” from his investigation.
Comey hinted to Congress that Mueller is now considering the question of obstruction.
“This is just the beginning of the story. Although Comey’s testimony was very sort of gripping and almost cinematic, the fact is the investigation is just beginning. And there is undoubtedly a host of sources of additional information and evidence that they’re going to be exploring — including, potentially, the tax returns of the president and others,” said Dan Petalas, a lawyer who formerly worked in the section of the Justice Department tasked with prosecuting corrupt public officials.
After visiting the White House on Monday, a friend of Trump, Newsmax chief Christopher Ruddy, told PBS that the president was “considering” firing Mueller. The Trump administration would not comment directly on Ruddy’s claim.
Trump does appear to have the power to fire Mueller in a roundabout way — by ordering his deputy attorney general to do the firing. Such a move would be reminiscent of Richard Nixon’s “Saturday Night Massacre,” in which Nixon terminated the Watergate special prosecutor, and would almost certainly strengthen the cries for impeachment.
Trump would not have to do anything criminal to be impeached. Under the Constitution, impeachment is an option for three kids of things: treason, bribery, and “other high crimes and misdemeanours.”
There has never been a consensus on what “high crimes and misdemeanours” actually are. But University of North Carolina constitutional law professor Michael Gerhardt, among other experts, say an act doesn’t have to be a criminal offence to qualify: it can be a “political crime” of some sort.
“Impeachment is not limited to what we call indictable crimes. It focuses on abuse of power, breach of trust. And some people could argue, and maybe are arguing, that we would trust the president not to abuse his authority here to try and influence an investigation that’s ongoing,” said Gerhardt, who testified before Congress during the Clinton impeachment process.
Still, the case for impeachment might appear stronger to the public if Mueller, not just Democrats and outside analysts, concluded that Trump did commit the crime of obstruction. And this is where the questions get technical.
The federal obstruction law makes it a crime to obstruct a “pending proceeding.” It is not clear, Petalas said, that an FBI investigation qualifies as a pending proceeding.
Even if it does, the obstruction law says that intervening in the proceeding is only a crime if it is done “corruptly.” The big issue, then, is Trump’s intentions.
What did he mean when he allegedly told Comey in February, “I hope you can see your way clear to letting this go, to letting Flynn go”? Why did he allegedly force everyone else out of the Oval Office before he did so? Why did he fire Comey in May?
Akerman, a lawyer who served as an assistant special Watergate prosecutor, said Trump’s public statements — such as his declaration on NBC that he was thinking about the Russia probe when he fired Comey — offer an “unbelievable” amount of evidence of a corrupt intent, far beyond what a prosecutor would normally be able to obtain.
Akerman scoffed at the Republican argument that Trump may have acted inappropriately but innocently, merely new to the presidency and a little lost. Obstruction law, Akerman noted, does not only apply to presidents.
“People get charged with this crime all over the country,” he said. “It’s no defence to say ‘I’m stupid, I’m naive.’ That’s got nothing to do with it — inexperience as president? Zero. The only issue is corrupt intent.”
Trump argues that there was “no collusion, no obstruction,” saying Comey’s testimony gave him “complete vindication.” But the notion of impeachment appears to have crossed even his mind.
In an unusual kind of post on Twitter on Monday, Trump effectively mentioned the I-word himself — sharing a Fox News video in which Geraldo Rivera declared that Comey’s testimony had sent the probability of him being impeached plummeting from 3 per cent to nil.