By Frank Bowman
On August 21, 2018, Michael Cohen, Mr. Trump’s former lawyer, pled guilty to eight felony charges, including two campaign finance violations. The last two impose criminal liability for Mr. Cohen’s role in paying two women involved in affairs with Mr. Trump to prevent their stories from becoming public before the election. Critically, during his plea colloquy with the judge, Mr. Cohen stated under oath that, “I participated in this conduct … for the principal purpose of influencing the [2016 presidential] election,” and acted “in coordination with and at the direction of a candidate for federal office” — Mr. Trump.
Cohen’s statement, if true, means that Mr. Trump is guilty of a conspiracy to violate election law under 18 U.S.C. Sec. 371, and of the election law violations themselves under a complicity theory, 18 U.S.C. Sec. 2. Of course, as has been discussed ad infinitum over the past year, the Justice Department has a policy not to indict a sitting president and there is no indication that they intend to deviate from that policy now.
So lots of folks (including Chuck Todd of NBC, Bret Stephens of the NY Times, and my energetic student and blog co-author Sam Crosby) have jumped immediately to the suggestion that these campaign finance violations constitute proper grounds for impeachment. I disagree, for both constitutional and political reasons. At best, depending on how the Mueller investigation finally plays out, the payoffs could form part of a plausible impeachment argument.
First, some background. The constitution defines impeachable conduct as “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery are crimes, but “high crimes and misdemeanors” need not be. The phrase is a term of art adopted from British parliamentary impeachments and was not limited to criminal conduct. Two centuries of American usage have confirmed this point. Commission of a crime is not a necessary precondition for impeachment.
Conversely, not every violation of the criminal code is impeachable. The constitution speaks of impeachment for ‘”misdemeanors” — or perhaps only “high misdemeanors” — but it is well nigh impossible to think of any modern crime classified as a misdemeanor that would justify removal of a president. Jaywalking. Shoplifting stuff worth less than $300. Driving under revocation. Punching somebody in the nose in a fit of anger. All misdemeanor crimes. But preposterous as grounds for impeachment.
Not even all felonies are proper grounds for impeachment. The basic rule that has evolved over the years is that “high crimes and misdemeanors” are serious offenses that either endanger the political order or demonstrate an official’s manifest unfitness to continue in office — which if the official is the president necessarily endangers the political order.
This is the lesson of the Clinton affair. Did Bill Clinton commit the felony of perjury when he lied about sex with Monica Lewinsky? Surely. He was impeached by the House of Representatives for doing so. Yet he was acquitted by the Senate. Not because he didn’t lie, but because many senators just didn’t think lying about sex was sufficiently important to merit removal of a president.
The parallel to Mr. Trump’s situation is plain. Trump was engaged in extramarital sex. He wanted to hide it. He arranged to pay off one of them and to reimburse the publisher of the National Enquirer for its payments to the other for the rights to her story. Neither the sex nor even the payments were in themselves unlawful. What made Michael Cohen a felon is that paying off the women to aid a candidate is a political contribution. One of the payments was apparently made by the Trump Organization, and corporate contributions made directly to presidential candidates are illegal. The other payment (to “Stormy Daniels”) was made by Cohen personally, but it far exceeded the legal limit of $2,700 per person per candidate. Cohen made one payment and arranged the other. Trump allegedly asked that he do it. Hence, two crimes.
But the crimes were in the payments. One from an illegal source, the other in an illegal amount. What they bought — concealment of embarrassing sexual escapades — is completely irrelevant under election law. Cohen (and Trump) would be equally guilty if the money was used to buy a shipload of red MAGA hats.
In Mr. Clinton’s case, his Republican opponents endlessly recited the mantra, “It’s not the sex. It’s the lying under oath.” Here, Mr. Trump’s pursuers could (and some surely will) say, “It’s not the sex, it’s the concealment in violation of election law.”
One can argue that Trump’s violation of laws designed to protect the integrity of elections is more indicative of unfitness for office than Clinton’s perjury because Trump’s offense relates to the democratic process. That is a key point, and I’ll return to it in a moment. But the fact remains that the essence of Cohen’s payoffs of Trump’s former inamoratas is extramarital sex and a guy trying to cover it up. The parallel to Clinton is just too strong for the Democratic Party to press for impeachment on this ground. The cries of hypocrisy would be too loud … and they would in large measure be justified.
But what about the fact that Cohen says Trump helped him violate election law — statutes designed to protect the integrity of the democratic electoral process ? The Founders were quite clear that efforts by a presidential candidate to corrupt the process by which he was selected would be impeachable.
At the Constitutional Convention, George Mason (who introduced the phrase “high crimes and misdemeanors” into the constitution) maintained that a president who “procured his appointment” by corrupting the “electors” must be impeachable. Gouverneur Morris made the same point. By “electors” they meant members of the Electoral College because that regrettable institution was envisioned by the Founders as a body of illustrious men selected by the states who would exercise their independent judgment in selecting a proper president for the nation. As originally designed, the process of picking a president had no place for voting by the citizenry. The “electors” made the choice.
To the Founders, the only obvious way of corrupting the presidential selection process was to corrupt the tiny circle of eligible voters – the electors. Today, of course, electors exercise no independent judgment. They merely transmit the preference of the voters of their state. Presidential elections are now supposed to be essentially, if sometimes imperfectly, democratic exercises that reflect the will of the people. Therefore, practical modern electoral corruption must take the form of distorting the judgment of the electorate, rather than the electors.
That sort of corruption, if of sufficient magnitude, might be impeachable — with two large caveats.
First, the arts of voter persuasion inevitably have some aspects of flim-flam. Political spinning, concealment of one’s own flaws, factually questionable slurs on an opponent’s record or character, appeals to emotion rather than logic — all could be said to distort reasoned voter choice. But just being an ordinary politician can’t be an impeachable offense. Even concealment of a disreputable fact about one’s past surely cannot alone be impeachable. Everybody has skeletons. Impeachments on this ground would permit relitigation in Congress of every presidential election.
Second, therefore an impeachment on grounds of corrupting the electorate would have to be based on behavior so far outside the elastic norms of modern political conduct that it both demonstrated the successful candidate’s contempt for the democratic process and put the fair operation of democracy at risk.
Mistress-payoff election violations are too inconsequential (and too obvious a parallel to the Clinton debacle). To figure at all in a serious impeachment case, those payoffs would have to be part of a larger pattern of illegal or plainly illegitimate conduct designed to give the candidate an unfair advantage or to deceive the electorate. Better yet, they should be part of a pattern of conduct that does not merely give advantage to a candidate, but places him under an obligation to some person or entity or foreign power whose interests are inimical to the United States. In short, all the stuff that Robert Mueller is looking into.
The suspense continues….