Happily, the holiday week was a quiet one. It offered time to reflect on what may happen in 2018 and beyond to the Trump administration.
Apparently Trump has decided to delay granting pardons as long as possible, waiting until the situation with each witness is clearer, keeping his options open and his leverage over witnesses strong. Still, Trump is expected to aggressively use his pardon power at some point.
Pardons are not the end of the saga, though. People who are pardoned lose their Fifth Amendment right against self-incrimination (at least to the extent they are pardoned) and so can be compelled to testify.
Of course, once pardoned, some may have little reason to cooperate. Special Counsel Robert Mueller seemingly is planning for this: He has been structuring his prosecutions so they can be continued by prosecutors under state law. A President can only pardon federal crimes, not state ones. New York is a likely venue, as the Trump campaign was run from Trump Tower there.
A larger question is whether a sitting president can be prosecuted criminally. We don’t know the answer, as the Constitution is silent on the point and no court has ever ruled on this issue. Although there are legal commentators who differ, the majority believe that a sitting president cannot be prosecuted criminally, although that president can be prosecuted once he leaves office.
This makes sense, as the Constitution specifically allows Congress to impeach and remove a president, which implies that is the sole remedy. If it were not, a prosecutor anywhere in the country could prosecute, win a conviction against and jail a president. (It sounds like a good approach regarding Trump, but it would apply to later Democratic presidents also.)
Still, a sitting president can be listed in indictments as an “unindicted co-conspirator” as Nixon was, making impeachment more likely.
As Special Counsel Mueller hones in on Trump’s involvement with Russia, the danger that Trump will engineer Mueller’s firing grows. Firing Mueller, though, increases the odds that Trump would at some point face criminal obstruction-of-justice charges. It also increases the chances that he would be impeached or forced to resign.
Nixon’s “Saturday Night Massacre” -- where people he ordered to fire the special prosecutor kept resigning until Nixon found that the infamous Robert Bork would act -- ultimately led to Nixon’s resignation.
Trump perhaps also believes that he can escape. He may think that Mueller won’t bring charges against him, or that the courts will not allow those charges to proceed while he is in office. It also is likely that Trump was careful not to have any campaign contacts with Russia himself, foisting those on others, as he did with the meeting with Russians to obtain dirt on Hillary Clinton.
He certainly has decided that he will brand some as liars, such as General Mike Flynn. Combined with the power of the pardon, that may convince Trump that he can avoid conviction -- or at least reach an acceptable plea bargain, as he and his father did on federal charges of racial discrimination in housing. And, of course, he may believe that his successor will pardon him, as Gerald Ford did with Nixon.
The bigger risk for Trump is that the Mueller investigation will further damage Trump’s poll numbers and re-election chances -- and increase his odds of being impeached. Given that Trump likely believes the current Republican-controlled House will not impeach him, Mueller may be safe until it looks like the Democrats will win a majority of the House – or actually do so. At that point Trump could replace Mueller with someone willing to find that Trump committed no wrongdoing.
While a House and Senate controlled by the Democrats could pass legislation appointing a new special prosecutor, Trump could veto that and a 2/3 vote of both the House and Senate would be required to override the veto. It’s not clear that the Democrats could get enough Republicans to go along.
Unfortunately, what is clear that there will be no impeachment of Trump so long as the Republicans hold a majority of the House of Representatives, regardless of the evidence. It’s analogous to Trump’s statement that he could shoot someone on Fifth Avenue in New York and not lose any voters.
The Republicans, self-proclaimed champions of “fiscal responsibility” -- were willing to pass massive tax cuts for corporations and the wealthy despite increasing the national deficit by $1.5 trillion. They did that to appease their wealthy donors, who said they would quit contributing otherwise. Given that, Republicans certainly are not going to bring dishonor on the Republican party by impeaching a Republican president – and effectively conceding the 2020 presidential election to the Democrats.
Of course, the Democrats have a good chance of taking a majority of the House in 2018, with the elected taking office in 2019. That means Trump will have to negotiate with the Democrats regarding budget matters.
At the very least, one would also expect House investigations of the Trump campaign to be energized, in contrast to how they are currently hampered by Republicans such as Devin Nunes, Republican Chair of the House Intelligence Committee. Impeachment of Trump by a Democratically controlled House seems likely eventually. On the other hand, the Democrats will want to build a strong case against Trump and that will take time after they assume control of the House.
Impeachment only starts the proceedings, though. In order to convict and remove Trump from office, a two-thirds vote of the Senate is required. With winning the U.S. Senate seat in Alabama, the Democrats probably have a 50-50 chance of taking a majority of the Senate in 2018 currently. Some Republican votes would be required (although with a majority the Democrats would control the proceedings).
That might not be as unlikely as it sounds. Trump has personally insulted many of the Republican Senators and several will be running for the Republican nomination for President in 2020. If it looks like Trump will lose the 2020 election but seems determined to run, impeachment will look better to some Republicans.
Also, many Republicans would prefer Mike Pence as President. Though he may be a theocrat, Pence is part of the good-ole-boys Republican network. Republican Senators would feel much better about working with Pence than with Donald Trump, who has excoriated them publicly on many occasions and is likely to do during the 2020 campaigns. Still, Republican votes would depend on how devastating the evidence against Trump is.
One interesting scenario is what happens if the House impeaches both Trump and Pence. If both were removed from office by the Senate, the next in line – the Speaker of the House, presumably by then a Democrat – would become President. It’s difficult, though, to imagine Republicans voting to remove Pence as well as Trump and making a Democrat the President.
As for 2018, although Speaker of the House Paul Ryan wants to try cutting back Medicare and Medicaid, the Senate is unlikely to acquiesce. Several Republican Senators will face fierce election competition from Democrats this fall, and Republicans already have a battle trying to defend the tax cuts bill they just passed. While the House may pass legislation cutting the social safety net, self-preservation will inspire enough Senators to make approval by the Senate unlikely.
Even Senate majority leader Mitch McConnell has indicated, now that the tax cuts have passed, that he is looking for a less controversial 2018 as the elections come into view. Of course, he claims he’s looking for cooperation with Democrats too, but then he’s probably also looking for a white unicorn with a rainbow mane and tail.