Forget an indictment. Forget impeachment. It’s unlikely that President Trump will ever face punishment for ordering his personal lawyer to pay hush money to cover up sexual affairs whose exposure might have hurt his election campaign.
Trump’s longtime friend and professional fixer Michael Cohen said Tuesday under oath that he was acting at his boss’s behest when he helped arrange six-figure payments to help silence two women who might have otherwise gone public with potentially damaging, lurid tales of their affairs with the real estate mogul.
If Cohen is telling the truth, then Trump committed a criminal violation of election law by failing to disclose this significant, campaign-related spending.
No indictment is likely to follow, however. The longstanding position of the Justice Department Office of Legal Counsel is that presidents cannot be indicted because the process — from early-stage hearings to an eventual trial — is too great a disruption to the normal function of the US government, including national security.
Indicting Trump for violating elections law would indeed raise fundamental constitutional questions. Which is not necessarily a reason to demur. Prosecutors eager to test the limits of presidential immunity could still try to bring a case against the president, in hopes of a definitive ruling from the Supreme Court.
But this effort could get complicated quickly. Trump has the power to dismiss any US attorneys bringing such charges. And while state-level prosecutors face no such threat, their involvement might create a new problem: namely that future presidents will be beset by indictments brought by states on the other side of the political divide.
The founders were themselves divided on whether presidents could be indicted, but they made another arrangement: impeachment. That’s the constitutionally sound method for rebuking and removing presidents who have committed “high crimes and misdemeaners.”
Despite the latest revelations, impeachment still seems like a long shot, because the only clear path involves a Republican civil war.
With Republicans in control of both houses of Congress, impeachment can only happen if a meaningful share of conservatives support it. But any defectors risk severe blowback from a party whose voters are very attached to their president. As of July, 88 percent of Republican voters approved of Trump, the second-highest level of intra-party support for any postwar president (behind George W. Bush in the aftermath after 9/11).
Even if Democrats win back control of the House this November, impeachment may remain a distant threat. Despite the latest revelations, minority leader Nancy Pelosi said Wednesday that it is still “not a priority.”
If impeachment is a step too far, Congress could opt for milder action, like new investigations into potential presidential malfeasance. Already, they provided sufficient support for the appointment of Robert Mueller, along with congressional investigations into Russian interference.
New scrutiny could now be applied to alleged election law violations, whether Trump is using his office to enrich his family, and whether he has complied with tax laws over the years.
As yet, however, there doesn’t seem to be any eagerness for heightened oversight, at least from Republicans. Instead of meeting the latest charges head-on, longtime senator and sometime Trump critic Lindsay Graham released a statement saying that “it’s important to let this process continue without interference.”
Remember, midterm elections are coming up, and Republicans fear that a concerted move against the president could splinter the party and further damage their electoral chances.
Which brings us to the only recourse citizens have when leaders misbehave: Vote them out.
That can’t happen directly, as the Constitution doesn’t have a recall option, where voters would be empowered to oust a sitting president mid-cycle.
However if Democrats gain control of the House in the midterm elections, they can break this logjam, pursuing vigorous investigations into the president and his team.
In 2020, things get even more interesting, because suddenly Trump’s reelection campaign could start to look like a stay-out-of-jail campaign. An electoral loss might mean the end of his immunity from prosecution.
The late president Richard Nixon, of Watergate fame, escaped this fate, thanks to a pardon from his successor Gerald Ford. And there may be a lesson in that for Trump.
If Cohen’s accusations are true, and if the screws continue to tighten, Trump may want to consider taking the Nixon route out of D.C.: resigning from office and handing power over to Vice President Mike Pence, who is more likely to be generous with his pardon pen than any triumphant Democrat.
Evan Horowitz digs through data to find information that illuminates the policy issues facing Massachusetts and the U.S. He can be reached at firstname.lastname@example.org. Follow him on Twitter @GlobeHorowitz