Could Trump be impeached after Cohen plea? Not so fast, warns constitutional lawyer
Joshua Matz outlines how the impeachment process works
If Democrats move too quickly to try to impeach U.S. President Donald Trump, they risk failing and effectively vindicating him, said an expert on constitutional law.
"What you might be teeing up is something that looks like an acquittal, and in that respect a vindication of the president, shortly before the 2020 presidential election," said Joshua Matz, a constitutional lawyer and co-author of a book called To End A Presidency: The Power of Impeachment.
Trump's former lawyer Michael Cohen pleaded guilty Tuesday to tax evasion, bank fraud and campaign finance violations, implicating the president in the final charge.
In an interview with Fox News, Trump was asked if he believed the Democrats would try to impeach him. "I guess it says something like high crimes and all, I don't know how you can impeach somebody who's done a great job," he responded.
Matz spoke with The Current's guest host Ioanna Roumeliotis about the process of impeachment, and the political calculations that Trump's opponents would need to consider.
If what Michael Cohen said did happen between him and the president, would that rise to the level of an impeachable offence?
My suspicion is that standing alone, it probably wouldn't. A single, one-off campaign violation of that kind would be extremely serious, and should merit very substantial congressional investigation and action.
I think the real question would be whether, if the president did commit that crime, it was part of a broader and more menacing pattern of illegal conduct relating to the election. Because it really does take something extreme to qualify as an impeachable offence.
[Trump] talked about high crimes and misdemeanours ... what does that actually mean when it comes to forcing a president out of office?
So what the Constitution says is that a president can be impeached and removed from office if he is guilty or found guilty of treason, bribery, or other high crimes and misdemeanours. It doesn't define that last phrase, and it has generally been understood as referring to extraordinary abuses or corruptions of power, or betrayals of the nation that imperil American democracy and the broader political system.
If the president has committed an impeachable offence, the judgment is ultimately left to Congress — to the House, in deciding whether to bring articles of impeachment — and then to the Senate, in deciding whether to convict or acquit on those articles. And only if both of those things happen, that the House impeaches and the Senate convicts, is the president then removed from office. So here we're talking about whether the constitutional standard, that would allow the House to act against the president, is potentially satisfied.
We've heard a lot in the news about the fact that a sitting president cannot be indicted, or at least that is the policy. Can you shed some light into that, and what is the logic behind that policy?
So there is a dispute over that, although I think it's fair to say that the widely prevailing view and the view held by the Department of Justice is that the president can't be indicted, basically because of the structure of the constitutional system.
Nothing in the Constitution specifically says that it couldn't happen, but there's a suggestion that by authorizing impeachment as a remedy for presidential wrongdoing, and by putting the president at the head of the branch of government that would otherwise be in charge of prosecuting, the Constitution doesn't contemplate a world in which a sitting president faces criminal liability from an unelected, politically unaccountable federal prosecutor, who is nominally one of his own subordinates.
In that circumstance, it really is left to the political process. And then if a president has committed crimes, they can be indicted, but only after having been removed from office or after their time in office ends.
And while there are folks who think that that is not the case, that it would be appropriate to bring criminal charges against a sitting president, I would be very surprised if Robert Mueller were such a person, or if this Department of Justice were going to try to leap that chasm.
Was impeachment designed for a president like Donald Trump?
I think there is a very good case that impeachment is appropriate when the president engages in the kinds of wrongdoing that President Trump has engaged in. But I think it's also important to qualify that even if it's true — and again there is a good argument that it is, that this president has committed high crimes and misdemeanours — right now only 40 per cent of the American public supports his removal from office, according to the latest polls. And that number has been constant for almost the last year at this point.
But what if, during the midterms, the Democrats win the House of Representatives and that political will is there, and they want to begin that impeachment process? Do you think the House should vote to impeach the president, if the Democrats don't control the Senate?
I think that's an exceptionally difficult question, and my general intuition is to say they shouldn't. If the Democrats take the House of Representatives, which is not a foregone conclusion, obviously the first thing they need to do is investigate.
Before the House can file articles of impeachment against the president, it needs a comprehensive and well-developed factual record to substantiate any and all of the accusations that it's going to levy in its articles of impeachment. But if you're in a scenario where you know to a near certainty that the Senate is going to acquit the president, because you need 67 votes in the Senate, and it's really unimaginable that Democrats would come close to having that number, and it seems unlikely that Republican senators would abandon the president, unless the political dynamics change.
In that scenario, what you might be teeing up is something that looks like an acquittal, and in that respect a vindication of the president, shortly before the 2020 presidential election. And not only would that be unwise as a matter of constitutional law, because you'd be potentially putting the Senate in the position to vindicate the misdeeds that you have impeached for, but it would also be unwise politically.
Listen to the full discussion near the top of this page.
Produced by The Current's Howard Goldenthal, Danielle Carr and Noushin Ziafati.