If Donald Trump leaves office before four years are up, history will likely show the middle weeks of May 2017 as the turning point. Chief among his mounting problems are new revelations surrounding the question of whether Trump and his campaign colluded with Russia in its effort to tip the 2016 election. If Trump has nothing to hide, he is certainly jumpy whenever the subject comes up and his evident worry about it has caused him to make some big mistakes. The president’s troubles will continue to grow as the investigators keep on investigating and the increasingly appalled leakers keep on leaking.
Two especially damaging disclosures occurred on Friday, May 19, the day Trump departed on his first foreign trip. That afternoon, while Air Force One was in the air, The Washington Post broke an ominous story that law enforcement investigators had under scrutiny a “person of interest” on the White House staff, described as “close to the president.” No longer was the focus on a small number of people at some distance from Trump, such as his former campaign chairman Paul Manafort, longtime adviser and political troublemaker Roger Stone, or Carter Page, briefly Trump’s national security adviser during the campaign. The indications are that the “person of interest” is Jared Kushner, the president’s son-in-law.
Though younger and more composed, Kushner is a lot more like Trump than is generally understood. Both of them moved their father’s businesses from the New York periphery to Manhattan. Like his father-in-law, Kushner came to Washington knowing a lot about real estate deals but almost nothing about government. Both entered the campaign and the White House unfamiliar with the rules and laws and evidently disinclined to check them before acting. Thus, Kushner has reinforced some of Trump’s critical weaknesses. Trump has thrust project after project upon him (the only top aide he could trust), and Kushner, who has a high self-regard, has taken on a preposterous list of assignments. He was able somehow (likely through his own leaks) to gain a reputation—along with his wife, Ivanka Trump—as someone who could keep the president calm and prevent him from acting impulsively or unwisely.
In the days before Trump’s foreign trip, however, others on the White House staff, by now not fans of Kushner, leaked that he had encouraged Trump to make the shortsighted decision in early May to fire FBI Director James Comey. By getting rid of the man who was overseeing the investigation into the Trump campaign’s relationship with the Russian government, the president stirred widespread outrage and reinforced suspicions that he had something to hide. (Richard Nixon, who was a lot smarter than Trump is, similarly misread the way the public would react when he arranged for the firing of his special prosecutor, Archibald Cox.) One concrete and dangerous result was that Trump was quickly confronted with something worse: a special counsel—Robert Mueller, Comey’s predecessor as FBI director—who is respected by both parties and, unlike Comey, can focus on this one assignment and will be much harder to fire.
But the widely applauded decision to name a special counsel won’t resolve some momentous matters raised by the Russia affair. Mueller’s investigation is limited to considering criminal acts. His purview doesn’t include determining whether Trump should be held to account for serious noncriminal misdeeds he or his associates may have committed with regard to his election, or violations of his constitutional duties as president. The point that largely got lost in the excitement over the appointment is that there are presidential actions that aren’t crimes but that can constitute impeachable offenses, which the Constitution defines as “treason, bribery, or other high crimes and misdemeanors.”
When it was considering the impeachment of Richard Nixon, the House Judiciary Committee concluded that “high crimes” meant something broader than offenses listed in the criminal code. The concept of impeachment was largely lifted by the Founders from English law, which Edmund Burke explained to Parliament meant that “statesmen, who abuse their power” will be accused and tried by fellow statesmen “not upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of state morality.”1
Among the crimes that the Watergate defendants were convicted of and that might be applicable to the more recent misadventure are bribery, subornation of perjury, criminal obstruction of justice, money laundering, tax evasion, witness tampering, and violations of election laws including campaign finance laws. Other crimes that might have occurred in the Russia affair are violations of the foreign agent registration laws and the Foreign Corrupt Practices Act, perjury itself (including lying to federal investigators), plus espionage and even treason.
Unlike ordinary crimes, impeachable offenses are “political” questions—ones that deeply affect the polity. Alexander Hamilton said that impeachable offenses were political, “as they relate chiefly to injuries done immediately to the society itself.” For example, of the three articles of impeachment adopted by the Judiciary Committee against Richard Nixon in 1974, the most important was for “abuse of power.” The critical holding by the committee was that a president can be held accountable for the acts of subordinates as well as for actions that aren’t, strictly speaking, crimes. In the end, an impeachment of a president is grounded in the theory that the holder of that office has failed to fulfill his responsibility, set out in Article II of the Constitution, to “take care that the laws be faithfully executed.” Unless a single act is itself sufficiently grave to warrant impeachment—for example, treason—a pattern of behavior needs to be found. That could involve, for example, emoluments or obstruction of justice.
This concept of accountability is critical to preventing a president from setting a tone in the White House, or dropping hints that can’t be traced, that lead to a pattern of acts by his aides that amount to, as in the case of Watergate, a violation of constitutional government. Many of what seemed disparate acts—well beyond the famous break-in in the Watergate complex and the cover-up—were carried out in order to assure Nixon’s reelection in 1972, and they amounted to the party in power interfering with the nominating process of the opposition party. That way lay fascism.
Similarly, in the case of the Russia affair, even if the president’s fingerprints aren’t found on any single act, misdeeds committed by Trump’s aides and close associates could amount to an impeachable offense on the part of the president. By definition, impeachable offenses would appear to concern conduct only during a presidency. But a number of constitutional law scholars, including the Harvard Law professor Laurence Tribe, who was dubious at first, believe that if a president or his associates working on his behalf acted corruptly and secretly to rig the election, then the preinaugural period should be included.
Mike Flynn, Trump’s former campaign adviser and dismissed national security adviser, is obviously a problem for the president, who has acted toward him in a most bizarre way. Trump ignored the warnings of Obama and Chris Christie not to hire Flynn. Then he resisted firing him even though, six days after the inauguration, then-acting attorney general Sally Yates warned the White House that Flynn had been “compromised” by Russia, and that Flynn had lied to Vice President Mike Pence about his conversations with the Russian ambassador, Sergey Kislyak, in late December 2016. Yates also alluded to what she called Flynn’s “underlying conduct.”
Trump asked for Flynn’s resignation only on February 13, after stories about Yates’s warning appeared in the press—and then, two days after he fired him, the president called Flynn “a wonderful man.” Ignoring admonitions not to be in touch with someone under investigation, Trump has done so and, weirdly, recently told aides that he’d like to have Flynn back in the White House. Trump’s conduct has the unmistakable ring of a man concerned about what the other man has on him.
More recently, the McClatchy news organization reported that Flynn, in conversations with outgoing national security adviser Susan Rice during the transition, asked that the Obama administration hold off on its plan to arm Kurdish forces to help the effort to retake Raqqa, the ISIS capital in Syria. Since Flynn was a paid lobbyist for the Turkish government, which strongly opposed the plan, this action could possibly lead to a charge of treason.
In late May, it was reported that Flynn had told Kislyak that it would be preferable if Russia didn’t retaliate against sanctions imposed by the Obama administration in response to Russia’s meddling in the election. Flynn was leading the Russians to believe that they’d receive much better treatment under a President Trump and the Russians went along. (They’ve been disappointed because once Russia’s behavior in the election became known it was clear that Congress wouldn’t allow Trump to lift the sanctions.) A big question is whether Flynn discussed such important policy matters with the Russians without the knowledge of the president-elect. Once it became clear that Russia wasn’t retaliating, Trump tweeted: “Great move on delay (by V. Putin)—I always knew he was very smart!”
Another major question is how far the Russians got in recruiting allies in the Trump campaign. Recently, former CIA director John Brennan testified that last summer he’d become concerned about the number of contacts between Russians and people involved in the campaign, so much so that he told a bipartisan group of congressional leaders, including House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell, neither of whom has yet to show any sign of being perturbed. (But they are people to watch closely for any sign of movement away from Trump.)
Brennan testified he was worried that the Russians may even have recruited some Americans to cooperate with their effort to tilt the election. Intelligence analysts picked up conversations by Russians in which they bragged that they’d cultivated Flynn and Manafort and believed they would be useful for influencing Trump. (This doesn’t prove guilt on the part of either man.) According to CNN, some Obama administration officials viewed Flynn as a security risk.
While Mueller’s investigation could preempt some congressional inquiries, it still leaves them important work to do. It doesn’t fall to the special counsel to consider the enormous and pressing question of how to prevent a foreign power from interfering in our elections again. It’s up to Congress to determine what new laws to write to deal with that. Conflicts are likely to arise between what Mueller says he needs by way of secrecy and not subjecting witnesses to self-incrimination, and the committees’ desire to remain involved; these will have to be negotiated.
Laurence Tribe is gathering what he believes are impeachable offenses committed by Trump.2 Going back to the first days of the Trump presidency and continuing up to the present, Tribe sees Trump flouting the constitutional ban on accepting “emoluments”—payments by foreign governments that might compromise the president’s presumably undivided commitment to US interests. Examples include accepting money paid by foreign governments to Trump’s luxury hotel just down the street from the White House in order to curry favor with its owner, and Trump’s failure to cut himself off from ownership of a business that has projects all over the world.
Also, Trump may be held to have attempted to impede the FBI’s Russia investigation. In addition to his request to Comey that he “let…go” his investigation of Flynn, this could include Trump’s firing of Comey for, as he ultimately admitted, “this Russia thing.” Or Trump’s saying to Russia’s foreign minister Sergey Lavrov and to Ambassador Kislyak, of firing Comey: “I faced great pressure because of Russia. That’s taken off.” Collectively, these acts could amount to the impeachable offense of covering up other potential, substantive misdeeds. There were also Trump’s efforts very early in the administration to get Comey to pledge “loyalty” to him (Comey dodged, saying he’d give him his “honesty”). In another form of pressure, Trump asked Comey when the FBI would announce that he wasn’t under investigation. Comey didn’t respond.
Before it was revealed that Comey had taken notes of their conversations, Trump made a not-very-veiled threat that Comey “better hope that there are no ‘tapes’ of our conversations.” Whether this was a feint or Trump had actually taped some conversations is as yet unknown, but by now Trump’s habitual lying has put him in a difficult spot when it is his word against Comey’s—or pretty much anyone’s. Whether or not Trump has recognized it—after all, he deals in threats—the revelation that Comey had notes of Trump asking him to drop the Flynn investigation was a clear sign that Comey wasn’t going to simply go away.
Where are all the leaks coming from? Many Republicans want to make this the issue rather than what the leaks reveal, but the fact that they keep coming is a sign of the state of near collapse of the White House staff. It’s not an exaggeration to say that Trump has the most unhappy staff ever, with some feeling a higher duty to warn the public about what they see as a danger to the country.
From the stories that emanate from 1600 Pennsylvania Avenue the impression one gets is that Trump is a nearly impossible person to work for: he screams at his staff when they tell him something he doesn’t want to hear; he screams at them as he watches television news for hours on end and sees stories about himself that he doesn’t like, which is most of them. Some White House staff are polishing their résumés. Leaks are also being made by the intelligence community, many of whom see Trump as a national menace.
People who have been to the Oval Office have come away stunned by Trump’s minimal attention span, his appalling lack of information, his tendency to say more than he knows. (Intelligence officials have been instructed to put as much of his daily briefing as possible in the form of pictures.) Aides have been subjected to public embarrassment by his propensity for changing his story.
Trump sullies the reputation of people who have signed on with him. The respected general H.R. McMaster, now the national security adviser, humiliated himself by trying—presumably under orders—to combat the Washington Post story on May 15 that Trump had revealed highly classified intelligence about ISIS to Lavrov and Kislyak. What made this even worse was that the intelligence had been passed on to the US by Israel under a strict international concordat that classified information shared between allies is not to be revealed to anyone else. McMaster has yet to recover his reputation from having emphatically refuted things the Post story didn’t say. Over and over, McMaster characterized the president’s passing along to the Russian officials the most sensitive information as “wholly appropriate.”
Trump’s reckless act is believed to have endangered the life of an Israeli intelligence asset who had been planted among ISIS forces, something extremely hard to pull off. Trump’s mishandling of the intelligence provoked dismay in Washington. During his visit to Jerusalem on May 22, Trump claimed that the press stories about it were wrong because he hadn’t mentioned Israel; but the reports didn’t say he did.
That same day, The Washington Post disclosed that Trump had asked the heads of two major intelligence agencies to announce that there had been no collusion between his campaign and Russia. Both declined. Some Trump defenders will argue that he didn’t know enough to understand that he shouldn’t have made those calls, or to try to get Comey to back off investigating Flynn—what might be called the ignorance defense. But while ignorance of the facts might be an acceptable defense in criminal or impeachment proceedings, ignorance of the law isn’t.
The particular challenges of serving in the Trump administration have led some people to make compromises that outsiders are prone to judge. In very short order, the same person can be almost rapturously admired as a hero and then scorned as a coward and a loser. Consider Rod Rosenstein, a career government prosecutor with a reputation for integrity who became deputy attorney general in April. Within a couple of weeks Rosenstein found himself in a meeting with Trump and Attorney General Jeff Sessions (who had supposedly recused himself from any dealings on the campaign and the Russia matter) and under pressure to write a memo expressing his own strong negative views of how Comey had handled Hillary Clinton’s e-mail case. The choices before Rosenstein were to write the report, knowing that Comey was going to be fired anyway, or refuse to and resign or be fired. Then what use could he be?
Trump had reportedly thought that Democrats, still unhappy over Clinton’s loss, would be pleased with his firing of Comey if his rationale was Comey’s handling of her case. But that made no sense; the timing was inexplicable; Democrats were incredulous that Trump was now suddenly sympathetic to Clinton. While Trump was within his legal rights to fire Comey, his doing so risked politicizing the FBI and set a terrible precedent.
Now Rosenstein was the goat. But despite numerous Democrats’ harsh condemnation of it, Rosenstein’s memo reads as if it had been written by any number of the Democrats or experienced prosecutors appalled by Comey’s behavior in the Clinton case. The memo set forth views widely expressed at the time that Comey had made a number of prosecutorial misjudgments. These included his tough public comments about Clinton’s handling of classified material even though he said there weren’t grounds for prosecuting her—this isn’t done—and his letter to Republican committee chairmen, which he had to know would be made public, eleven days before the election, saying that the inquiry into her handling of classified e-mails was being reopened, breaking a long-standing rule that prosecutors don’t comment on the status of continuing cases.
Comey’s problem was that in trying to protect his reputation he kept doing things that further damaged it. In his testimony before the Senate Judiciary Committee on May 3 he spoke melodramatically of his anguish in having to decide between two choices: to “speak” or to “conceal.” But many observers believed that he had a third choice: quietly to get a warrant and check out some of the e-mails that had traveled from Clinton’s laptop to her close aide Huma Abedin’s to that of Abedin’s then-husband Anthony Weiner before reopening an investigation, much less announcing one and perhaps affect the outcome of the election. Comey’s testimony also angered Democrats by wildly exaggerating the number of Clinton’s e-mails that had landed on Weiner’s laptop—“hundreds and thousands,” he said, when actually there had been just a handful. Comey’s comment that the thought that his actions may have affected the election made him “mildly nauseous” enraged Trump.
Rosenstein was at the least naive if he didn’t understand that his report would be used as the rationale for the firing, but when that ensued, drawing intense criticism of him, he indicated he might quit. That Trump changed his story two days later, now saying that when he fired Comey he was thinking about “this Russia thing,” showed how exasperating and even damaging it could be to work for him. Everyone who hewed to the White House line that the firing had been based on Rosenstein’s memo, including Pence, was now embarrassed and lost credibility with the press and the public. And then Rosenstein was the hero again when just over a week later he appointed Mueller as special counsel.
The survival of Trump’s presidency may depend most of all on congressional Republicans. Unless the Democrats take both chambers in the midterms, the Republicans will decide his fate. At what point might their patience with Trump be exhausted? How will they respond if high presidential associates or even the president himself are indicted and he chooses to fight it out rather than resign? Is it possible that a Congress in which the Republicans control both or even one chamber would consider impeaching Trump? The impeachment proceedings against Nixon were accepted by the country because they were bipartisan and considered fair. Too many different unknowns are in play to predict the outcome of the midterms, though the respected Cook Report anticipates substantial Republican losses in the House. Republicans are starting to panic.
Their challenge is how to overcome the twin blights of Trump’s chaotic governing and his lack of achievements on Capitol Hill (the exception is the confirmation of the very conservative Neil Gorsuch to the Supreme Court). Trump’s sole substantive accomplishment thus far is the House’s approval of a health care overhaul that required all but a few of them to vote to throw tens of millions of people off of health insurance. (It was followed by a grand celebration at the White House.)
The Republicans are in a bit of a spot: they don’t particularly like Trump and to them he’s an interloper. One reason many of them, especially Ryan, allied themselves with Trump was that they thought he would get their programs, especially tax cuts, through Congress, but prospects for major legislation are receding. (And there’s no reason to think that a President Mike Pence wouldn’t back the same programs.)
The problem with much of the predicting about what will or might happen in Washington is that it proceeds from an assumption of stasis—as if things won’t happen that could change the politicians’ calculations. When it comes to how long Trump will remain in office, one possibility often discussed is that things might get so bad for him that he’ll decide to return to his much easier life in New York. But he insists that he’s not “a quitter.” (There’s also a question about the corpulent Trump’s health, but that’s not considered a proper topic of conversation.)
Politicians are pragmatists. Republican leaders urged Nixon to leave office rather than have to vote on his impeachment. Similarly, it’s possible that when Trump becomes too politically expensive for them, the current Republicans might be ready to dump him by one means or another. But the Republicans of today are quite different from those in the early 1970s: there are few moderates now and the party is the prisoner of conservative forces that didn’t exist in Nixon’s day.
Trump, like Nixon, depends on the strength of his core supporters, but unlike Nixon, he can also make use of social media, Fox News, and friendly talk shows to keep them loyal. Cracking Trump’s base could be a lot harder than watching Nixon’s diminish as he appeared increasingly like a cornered rat, perspiring as he tried to talk his way out of trouble (“I am not a crook”) or firing his most loyal aides as if that would fix the situation. Moreover, Trump is, for all his deep flaws, in some ways a cannier politician than Nixon; he knows how to lie to his people to keep them behind him.
The critical question is: When, or will, Trump’s voters realize that he isn’t delivering on his promises, that his health care and tax proposals will help the wealthy at their expense, that he isn’t producing the jobs he claims? His proposed budget would slash numerous domestic programs, such as food stamps, that his supporters have relied on heavily. (One wonders if he’s aware of this part of his constituency.)
People can have a hard time recognizing that they’ve been conned. And Trump is skilled at flimflam, creating illusions. But how long can he keep blaming his failures to deliver on others—Democrats, the “dishonest media,” the Washington “swamp”? None of this is knowable yet. What is knowable is that an increasingly agitated Donald Trump’s hold on the presidency is beginning to slip.
—May 25, 2017