When Michael Cohen , President Donald Trump’s erstwhile lawyer, confidant and “fixer,” on Wednesday testified to a congressional panel in a blockbuster hearing, he described a pair of alleged misdeeds by the president that prosecutors say are clearly indictable offenses – and neither, notably, relates to Russia.
Cohen, through nearly eight hours of testimony, discussed and submitted documents purporting to show that Trump while in office forked over $130,000 in hush-money to Stormy Daniels, an adult film star that Trump had allegedly slept with; and in years prior to entering politics had artificially inflated and deflated his networth in a bid to, respectively, get a bank loan to buy the Buffalo Bills and avoid property taxes.
The two alleged acts, if true, would appear to amount to a violation of campaign finance law and bank fraud, respectively, allegations that Cohen supported by presenting checks allegedly signed by Trump reimbursing Cohen for the payments, and financial statements allegedly given to Deutsche Bank showing a $4 billion swing in Trump’s purported net-worth.
Cohen further testified Wednesday that he at one point secretly recorded Trump, and that the payments were carried out at Trump’s behest.
“That’s all a crime,” says Nick Akerman. On the hush-money payment in particular, he continues, “you’ve got witnesses … you’ve got documents, you’ve got Trump’s signature all over this stuff, you’ve got tape. They got him solid.”
For anyone other than a sitting president, “give me that case and I could convict him in a couple days on that. It’s a very prosecutable case,” Akerman says.
Sitting presidents, though, face little risk of prosecution. Justice Department memos have concluded that that although a president is not expressly immune from prosecution, the powers of the office are so immense that they effectively prohibit indicting a sitting president, except in extraordinary circumstances.
That exception has sparked no shortage of legal speculation as special counsel Robert Mueller has investigated, in part, whether the Trump campaign colluded with the Russian government. However, there’s little doubt that a violation of campaign finance law – relatively common in modern politics – and bank fraud committed before Trump was in office do not meet such a high standard.
Similarly, there’s general agreement that the alleged conduct – although apparent federal crimes – do not amount to the “high crimes and misdemeanors” justifying impeachment and conviction under Article 2 of the Constitution, a process that requires not only the House to vote for impeachment but two-thirds of the Senate, where Republicans hold the majority, to then vote for conviction.
“In the public understanding of the framers, it is pretty clear that it is limited to conduct while in office,” says David Rivkin, a conservative constitutional law scholar who served in the administrations of President George W. Bush and President Ronald Reagan. “So whatever Donald J. Trump did or did not do in 2011 or 2013 or all the way through Jan. 20, 2017, is utterly irrelevant to the scope of impeachable offenses. In fact, the whole goal of impeachment is limited to your offenses as a public person – breach of public trust.”
Louis Michael Seidman, a constitutional law professor at the Georgetown University Law Center, offers a similar view: An impeachable offense “is a serious misuse of power that disqualifies the person from being president,” he says, and therefore ultimately a political question.
“Thinking about this as a matter of constitutional law leads to asking the wrong sort of questions,” Seidman says. “It ought to be thought about as a matter of politics, but of high politics – statesmanship, if you will – rather than narrow politics. Among the relevant considerations: Is there a national consensus that the president should go? Would impeachment seriously destabilize the country? Has the president shown himself unfit to serve? How much longer does he have to serve?”
Paying hush-money to cover-up a pair of affairs, even if those payments were made while in office, almost certainly won’t rise to such a level in the eyes of the American public, let alone the president’s allies in Congress.
“You start getting into the Stormy Daniels thing, it starts to feel like the Clinton situation with him lying about Monica Lewinsky – this is [Trump] lying, covering up with these two women,” Akerman says. “On the other hand, it relates directly to the election. But I don’t see them impeaching him on that.”
But even if Trump isn’t impeached on these alleged offenses, they could be waiting for him once he leaves office:
“They could wind up sealing those indictments, and after his successor is sworn in, he could be handcuffed and walked across the street and arraigned,” Akerman says.
“Could Trump face charges after he is no longer in office? Absolutely,” Seidman, of Georgetown Law, says. “As a practical matter, Trump will not be indicted while he is in office, but may well be indicted afterwards.”