Impeachment Or Indictment?

Sunday, on MSNBC's AM Joy, sharp-tongued columnist Jennifer Rubin predicted that in January 2021, just as his term is finally ending, Señor Trumpanzee will resign so that "President" Pence, also on his way to the garbage heap of history, can pardon him of all crimes.

Eric Levitz is always good for a yuck. His "Intelligencer" piece for New York Magazine over the weekend, Trump 2020 Shaping Up to Be a Campaign to Stay Out of Prison, was a barrel of monkeys (orange ones). "In 2016," he wrote, "Donald Trump claimed that America’s presidential election would determine nothing less than whether a proven criminal would be sent to jail-- or the Oval Office. In 2020, that might actually be the case." Trump is now implicated in a federal criminal conspiracy-- in fact, as the director of that conspiracy. He assumes, like most people following this case that "the only reason Donald Trump has not been indicted on federal charges is because he is the president. The conventional wisdom among legal scholars holds that the commander-in-chief cannot be indicted so long as he or she remains in office. That means that if Trump loses in 2020, he could promptly find himself in legal jeopardy."

[T]his says nothing of the new evidence of collusion between the Trump campaign and Russian government that’s sprinkled throughout Mueller’s memo. These lines of inquiry may not bear prosecutable fruit, but Cohen’s conviction alone should be sufficient for putting the fear of a post-presidential indictment into Trump.

It is true that the president could still be impeached instead of indicted. But even if Mueller’s investigation ultimately links the president to more crimes-- and demonstrates that his 2016 campaign had illicit ties to Russia-- it is hard to imagine a critical mass of Republican senators voting to remove Trump from office. There aren’t many things that this president has done with diligence and discipline, but delegitimizing the Mueller probe in the eyes of his base is one. And given how many blatant abuses of power that base has already witnessed-- and how unwavering the Trumpen proletariat’s support for their dear leader has been through it all-- it’s hard to see the president’s approval rating dropping to Nixonian levels, no matter what Mueller’s “WITCH HUNT” yields.

All of which is to say: There is a significant chance that in 2020, Donald Trump will be running for a second-term-- and from the law-- simultaneously. And if that proves to be the case, the consequences for American political life could be dire.

For Trump, the costs of losing the 2016 election were largely superficial — by most accounts, the original aim of the reality television star’s campaign was publicity, not the presidency. And yet, the mere threat of narcissistic injury was enough to inspire Trump to sow distrust in the legitimacy of the election. In July 2016, the GOP nominee told a crowd in Pennsylvania that “the only way we can lose, in my opinion... is if cheating goes on.” One month later, he told supporters in North Carolina that if the state’s voter-ID law remained suspended, Clinton voters would go to the polls “15 times” each...

Trump never stopped disputing the integrity of the election, even after he had won. Instead, the president-elect claimed, repeatedly, that millions of illegal ballots had robbed him of his rightful popular vote victory.

In this year’s elections, Trump had far less at stake. He wasn’t on the ballot himself, and a Democratic takeover of the House was already close to a foregone conclusion by midsummer. And yet, to boost his party’s 2018 prospects, the president proved willing to fabricate an impending “invasion” by migrant terrorists and gangsters; suggest that said invasion was being organized by the Democratic Party as part of an elaborate bid to steal the midterm elections; persist in fomenting such incendiary conspiracy theories even after they inspired one of his supporters to attempt the assassination of many leading Democrats; and deploy thousands of U.S. troops to the southern border, so as to give his big lie an extra measure of credibility.

Even before Mueller’s latest revelations, this behavior was sufficient to prompt widespread anxiety about what Trump would be willing to do to win reelection, and/or what he might incite “Second Amendment people” to do should he lose it. If the president’s personal freedom ends up on the ballot in 2020, a lot of worse-case-scenarios become more plausible.

Some progressives have worried that Trump might actually be able to turn the threat of a postelection indictment into a source of electoral strength. The idea being: If the sitting president can (somewhat credibly) campaign against a deep-state plot to “lock him up,” then the Democratic nominee will struggle to focus attention on Trump’s policy failures and substantive betrayals of working people, where he is arguably most vulnerable. But that particular fear seems unfounded. Trump’s myriad scandals haven’t alienated the GOP base, but they appear to have damaged him with just about everyone else. And anyhow, there are plenty of ways to insert policy arguments into a campaign dominated by an incumbent’s corruption scandals (simply pointing out the president appears too consumed by his own problems to worry about yours could suffice).

Should the Mueller probe continue to implicate the president in unsavory and illegal activities, the Democratic Party’s 2020 prospects will improve; but America’s prospects of averting a democratic crisis and/or heightened levels of political violence won’t.

Josh Gerstein, writing for Politico, offered another possible way for Trumpists to undermine the law on which Mueller's case against Trump will eventually rest, the prohibition of using foreign money in U.S. elections. "Ravi Singh," wrote Gerstein, "an Illinois-based political consultant and self-proclaimed 'campaign guru,' is challenging a decades-old federal law barring foreign involvement in U.S. elections. He calls the provision unconstitutional, insisting Congress can’t regulate the role played by non-citizens in state and local elections... At a time when the special prosecutor’s legitimacy is being attacked on various grounds, a ruling in Singh's favor would create even more uncertainty around the broader effort to shield U.S. elections from foreign influence."

Singh is appealing a 2016 federal conviction on charges a Mexican real estate developer secretly footed the bill for a quarter million dollars-worth of digital campaign consulting that Singh provided two San Diego mayoral candidates.

The source of the funds for Singh’s campaign work, businessman Jose Azano, has homes in San Diego and Miami and spent much of his time in the U.S., but is not an American citizen or green card holder. He was allegedly hoping to gain influence in a bid to redevelop San Diego's waterfront.

Singh’s lawyers have leaned on the Tenth Amendment to support their appeal. The clause gives states and the people the powers that the Constitution does not expressly delegate to Congress.

“Congress’s effort to trample on the states’ ability to structure their political processes as they see fit violates the Tenth Amendment,” Singh attorneys Harold Krent and Todd Burns wrote in a recent brief.

Singh’s defense team notes that enforcing a ban on foreigners donating to virtually any U.S. electoral campaign has had some bizarre results. For instance, various localities including Takoma Park, Maryland, San Francisco and Chicago allow non-citizens to vote in local elections of some sort. However, under the broad federal ban, it is illegal for at least some of those foreigners to donate to candidates in those same races.

“If the eligibility of foreign nationals to vote in state and local elections is exclusively a state/local matter, it stands to reason that the eligibility of foreign nationals to make contributions related to such elections is also exclusively a state/local matter,” Singh’s defense wrote.

...The Justice Department has a blunt response to that argument.

“It does not matter that some local jurisdictions may permit aliens to vote,” prosecutors wrote in a brief defending the conviction. “That is a matter of grace, not constitutional requirement.”

The prosecution also raised the specter that giving foreigners a green light to spend in non-federal elections could lead to foreign countries effectively taking control of local governments in the U.S, particularly along the border.

“It cannot be beyond Congress’s power to prevent foreign citizens from pumping funds into local and state governments to set up foreign enclaves within United States borders,” prosecutors wrote. “If Canadian citizens decided that they wanted to install favored officials in all towns on the northern border by flooding local elections with foreign national funds, Congress would certainly be acting within its power to thwart it.”

Legal experts are divided about how much traction Singh is likely to get for his argument that Congress went too far in banning foreigners without green cards from donating to state and local races.

“Regulating the activities of foreign nationals is not only a form of protecting self-government and democratic processes, but it’s also a form of protecting the country itself,” said GOP campaign finance lawyer Jan Baran of law firm Wiley Rein.



“I think there’s actually a pretty strong federalism issue here and it’s super interesting,” said Temple University Law Professor Peter Spiro, a leading expert on citizenship and dual nationality. “If non-citizen voting is constitutionally acceptable, I’m not sure I see what the government’s rationale here is... It’s hard to see the national security explanation when you’re talking about state and local elections, and once you take that off the table it just looks like a federal diktat in terms of how states define their own political community.”

...[T]hus far the foreign donation ban has played an elusive role in Mueller’s investigation. Despite leveling more than 100 criminal charges at a total of 34 individuals and three companies, Mueller has yet to directly charge anyone with violating the foreign donation ban.

The foreign donation ban was cited in an early Mueller search warrant for the Alexandria condo owned by former Trump campaign chairman Paul Manafort, who has since been convicted of bank and tax fraud and admitted to evading a federal law requiring registration of lobbyists for foreign governments.

Some have accused Mueller of deliberately avoiding charging a violation of the ban. A Russian firm that is the only defendant currently fighting a Mueller charge, Concord Management and Consulting of St. Petersburg, has alleged that the special counsel didn’t charge the company with violating the prohibition because prosecutors knew they couldn’t show the defendants knew their conduct was illegal, which the law requires.

A criminal complaint against a Russian accountant connected to Concord, Elena Khusyaynova, explicitly cites the foreign donation ban, but doesn’t charge any specific violation of it. (However, that case, focusing on alleged interference in the 2018 midterm elections, is being handled by prosecutors in Alexandria, Va.-- not by Mueller's team.)

“The Special Counsel has pleaded around the knowledge requirements of all related substantive statutes and regulations," Concord’s American lawyers, Eric Dubelier and Kate Seikaly wrote in a filing earlier this year that accused Mueller's team of "sleight of hand."

Last month, however, U.S. District Court Judge Dabney Friedrich rejected Concord’s drive to throw out the conspiracy charge it faces.

Mueller's office declined to comment on any concerns about how a ruling against the foreign-donation ban could impact his probe. However, at least one Mueller investigator is intimately familiar with the San Diego probe. The FBI agent who oversaw much of the Manafort investigation, Omer Meisel, also played a key role in the probe that led to charges against Singh, Azano and others.

The central focus of the San Diego inquiry-- Mayor and former Congressman Bob Filner-- never faced a federal charge, but he was hit with state charges and resigned the mayor's post amidst a sexual harassment scandal.