Trump's Offenses Far Worse Than 'Obstruction'

      President Trump is unlikely to be indicted and even less likely to be impeached for obstruction of justice for hoping that FBI director James Comey could go easy on Trump's friend and good guy, the fired national security adviser Lt. Gen. Michael Flynn. To be sure, Comey's account of the Feb. 14 Oval Office conversation with Trump, combined with the conspiratorial trappings of the talk and Trump's later firing of Comey, make out an indictable case that Trump "corruptly" sought to impede a pending federal "proceeding."

      Parsing Trump's words that carefully, however, is off-point by a country mile, somewhat akin to checking Al Capone's tax returns to see whether the bootlegger-mobster had run afoul of federal law. Trump's "high crimes and misdemeanors" are far worse than anything spelled out in 18 U.S.C. §1505, according to panelists at the American Constitutional Society's annual convention in Washington on Friday [June 9].

      Trump's actions in office and before are not merely "unconstitutional," according to Duke law professor Neil Siegel, but worse: "anti-constitutional." Siegel and fellow panelists in the progressive group's featured program listed the many ways in which Trump as candidate and now as president has stomped on and ground into the dirt unwritten constitutional norms that are essential to U.S. democracy. "We have a president who doesn't believe in democracy," Stanford law professor Pamela Karlan remarked.

      Karlan started her bill of particulars with Trump's threat during the campaign to jail his opponent, Hillary Clinton, if elected. As a second pre-election offense, Karlan recalled Trump's infamous reply that he would accept the results of the election only if he won. As post-election offenses, Karlan listed Trump's repeated unsubstantiated claims actually to have won the popular vote because of more than 3 million votes illegally cast for his opponent. And then, in pursuit of the nonexistent evidence, the president created a commission stacked with voting rights opponents aimed at making it harder, not easier, to cast ballots in the ultimate hallmark of a working democracy.

      Worst of all of his offenses, according to Slate's legal affairs columnist Dahlia Lithwick, is the Trumpian ontology of alternative facts. "What has been so fundamentally dismantled is the norm of truth," Lithwick remarked. In this view, Trump's assault on the media and his assault on the courts are part of a common strategy of seeking to delegitimize independent institutions capable of challenging Trumpian alternative facts, like the size of the Inauguration Day crowd or the content and purpose of the Muslim travel ban.

      None of these offenses will be found in title 18 of the U.S. Code, but the Framers appear to have been thinking in broad rather than legalistic terms in providing for impeachment of federal officials, including the president. In Federalist Nos. 65 and 66, Jay and Hamilton refer to "corruption" and "treachery" as grounds for impeachment, all-encompassing terms that might equally be rendered as "malfeasance" in office. "If you have enough of that," Seigel said of Trump's norm-breaking conduct, "maybe it's grounds for impeachment."

      The definition of an impeachable offense depends not on an academic debate about the Framers' intentions but on the political will of the House of Representatives. With a Republican majority dependent on the good will of the Republican base, the current House is unlikely to consider impeachment — not unless Trump's Mendoza-line approval ratings seriously jeopardize the members' own election chances.

      With impeachment off the table for now, indictment has a natural appeal to the #NotMyPresident crowd, but it is likely no more than a pipe dream. For starters, many legal scholars and experts believe that impeachment, not criminal prosecution, is the sole remedy against presidential misconduct. Oddly, the argument depends on an unwritten constitutional norm. ''The Framers implicitly immunized a sitting president from ordinary criminal prosecution,'' the Yale law professor Akhil Reed Amar remarked recently to the New York Times's Adam Liptak.

      Harvard's Alan Dershowitz has been making a separate argument specifically against an obstruction charge. As president, Trump has the power to direct the executive branch, Dershowitz argues, including the power to call off a law enforcement investigation or to fire a noncompliant FBI director. By analogy, Dershowitz cites the president's pardon power, exercisable at his sole discretion. Yet Dershowitz's argument proves too much: surely a pardon-for-cash scheme would be either indictable or impeachable or both.

      In the most recent full rehearsal of the arguments, a rising legal academic has given his thumbs-up to a possible indictment in a post on the Trump-watching blog Take Care. Writing in advance of Comey's testimony to the Senate Intelligence Committee, Andrew Manuel Crespo, an assistant professor at Harvard Law School, found no bar to charging Trump with obstruction of justice. If special counsel Robert Mueller were to seek an indictment, Crespo wrote, "he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted."

      Perhaps, but a prosecutor might want a stronger case before testing those bounds. For now, the rule of law that Trump so threatens may depend not on Congress or the courts, but on "we the people" ourselves. "A republic if you can keep it," Benjamin Franklin cautioned after helping write the Constitution in the fateful summer of 1787.  "We've lost our way," ACS panelist Siegel remarked, "and we need to find our way back." The path is by no means clear.