Is this the clear-cut crime that takes down President Donald Trump?
That’s what political and legal analysts have been asking since Thursday night, when BuzzFeed News reported evidence that the president instructed his attorney, Michael Cohen, to lie when he testified before Congress about Russia-related matters.
If that account (which, the news site notes, has been disputed by the office of the special counsel) is true, Trump clearly broke the law. But would his actions be perceived by the public as serious enough to warrant impeachment?
Eric Posner argues that it all depends on something we don’t yet know: his motivation. Was he trying to cover up a traitorous conspiracy between Vladimir Putin and himself? Or was the man who continually claimed during the campaign that he had no business ties to Russia simply trying to avoid the embarrassment of being outed as a liar, and as a bad businessman?
If the first scenario can be proven, Trump’s presidency is now on extremely shaky ground. But if it’s the latter, Posner, a University of Chicago law professor and constitutional scholar, argues it will be hard to build a bipartisan consensus that he should be removed from office.
“We need to know more before we know if this changes things,” he said in a telephone interview Friday afternoon. “I don’t think there is yet a political appetite for impeachment.”
Strictly as a matter of law, evidence that Trump ordered his lawyer to perjure himself does change things, in Posner’s view. “We have a much clearer crime that is easier to prove,” he said. “The president has weaker Constitutional arguments on his side than the vaguer obstruction-of-justices charges that would be based on firing [Federal Bureau of Investigation Director James] Comey, or the various statements he made that could be considered threats or promises of pardons.”
But here’s the rub: All that applies only in the unlikely event that special prosecutor Robert Mueller defies Department of Justice guidelines stating that a sitting president cannot be indicted. Otherwise, bringing Trump to justice falls to Congress, which will, in turn, be guided by public opinion.
Posner played out that scenario as part of a wide-ranging interview.
Ordering your underling to lie under oath is a fairly simple crime to understand, and most people would see it as obviously wrong. Doesn’t that make it easier to justify impeachment?
Ultimately, the public is looking for not just something that’s clear, but something that seems really important. [President Bill] Clinton perjured himself about his sexual affair with Monica Lewinsky, but there wasn’t much appetite for impeachment. He had committed a crime, but the debate was whether it was serious enough to impeach him. His defenders said he lied to protect his private life. I think the same thing applies to Trump. The public would have to decide what it thinks about this particular lie, and why Trump ordered Cohen to engage in that lie.
There are two theories here. The collusion theory has it that Trump has some kind of relationship with Putin, and Russia was going to help him get elected in return for removing sanctions, or eliminating [the North Atlantic Treaty Organization], or what have you. The other theory is Trump just wanted to make money in Russia with this building, and he wanted to keep the plans from the public. If that’s what’s going on, it seems more like the Clinton case.
I certainly don’t want to defend Trump, but I’m not sure the public will support impeachment if that’s the story. Unfortunately, [sorting out the truth] could be a mess. Rather than a simple quid-pro-quo, there could have been a more implicit, “You do this for me, I do this for you.” The messier it is, the harder it will be to tell a simple story that would persuade the public that impeachment is warranted.
Last week, William Barr, Trump’s nominee for attorney general, testified before a Senate committee, and reactions were really split. Some commentators argued he said all the right things, while others complained he left open large loopholes. Where do you come down on him?
(Photo: Wikimedia Commons)
I have gone back and forth on Barr. My initial reaction was he was an experienced, serious person. He has strong views on presidential powers, but the [Department of Justice] usually does take the president’s side on such issues. I thought the memo he wrote [questioning the rationale for the Mueller investigation] was pretty outrageous. But when the committee pressed him on it, he basically gave reasonable answers. I think people are right to be a little bit worried about what Barr said, but it would be reasonable to confirm him.
Are you confident that Mueller’s findings will come out, one way or another?
I think so. I find it hard to believe the ultimate report would be suppressed. The public outrage would be too great.
What happens if Trump is neither impeached or indicted? He just walks away free?
When Trump leaves office, someone is going to have to make the very difficult decision of whether to prosecute him. That’s going to be a tough call. No former president has ever been prosecuted for crimes he committed while in office. If you broke that precedent, you’d have to worry about the political consequences. [President Barack] Obama refused to allow investigations of alleged law violations of the Bush administration. He was conscious of the norm we have in this country that we do not criminalize partisan differences. The next president, or attorney general, will have to take that into consideration.
Earlier this month, Trump threatened to declare a state of emergency so he could unilaterally obtain the money needed to pay for a wall on the Mexican border, which Congress refuses to allocate. If he ultimately does so, does it set a precedent that is bad for democracy?
There’s a classic theory in political science about presidential systems. If the public is polarized, gridlock between the president and legislature can be severe. At some point, to get things done, the president will declare an emergency and rule by fiat. He becomes a dictator. That has happened a lot in Latin America.
We’ve been growing more polarized over the last several decades. Under the Obama administration, we had the debt-ceiling impasse, which in a way was even more outrageous than the current fight over the wall. There was the threat we would not pay our debts and cause a global economic catastrophe. So I suppose it could happen in the United States, but it would be hard for the president to do it. The courts would not be cooperative. There would be a lot of pushback.
If Trump does declare an emergency, the thing to do is look at the reaction. If everybody is outraged, including Republican leaders, it’s not going to happen again. If people say “Fine,” we should be worried, but I don’t think that’s going to happen unless it’s just a face-saving way of getting out of this impasse that doesn’t have any meaningful effect. I’m not ready to panic about this.
This interview has been edited for length and clarity.
